FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10396

Plaintiff-Appellee, D.C. No.

v.  1:04-cr-05141-

AWI-1 PETER JOHN KRUPA,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted

October 4, 2010—San Francisco, California

Filed February 7, 2011

Before: Marsha S. Berzon and Consuelo M. Callahan,

Circuit Judges, and Charles R. Wolle,

Senior District Judge.*

Opinion by Judge Callahan;

Dissent by Judge Berzon

*The Honorable Charles R. Wolle, Senior District Judge for the U.S.

District Court for Southern Iowa, Des Moines, sitting by designation. 

2259
COUNSEL

Katherine Hart of Fresno, California, for defendant-appellant

Peter John Krupa.

Benjamin B. Wagner, United States Attorney, and Brian W.

Enos (argued), Assistant United States Attorney, of Fresno,

California, for the United States.

OPINION

CALLAHAN, Circuit Judge:

Peter Krupa appeals from his conditional guilty plea to

receiving material involving the sexual exploitation of minors

in violation of 18 U.S.C. § 2252(a)(2). Krupa challenges the

district court’s denial of his motion to suppress evidence

seized from computers in his custody. On grounds that differ

slightly from those proffered by the district court we affirm

the denial of the motion to suppress.

On April 12, 2002, the military police at Edwards Air Force

Base received a call from Rhonda Velasco. She was worried

because her ten-year-old daughter and five-year-old son, who

were living on the base with her ex-husband, Sergeant

Velasco, had not arrived at the train station in Lancaster as

previously arranged. Accordingly, the military police went to

Sgt. Velasco’s home. There they encountered Peter Krupa. He

indicated that he was taking care of the children while Sgt.

Velasco was in the Philippines until April 21, and showed the

military police a written note to that effect. 

2262 UNITED STATES v. KRUPA
The home was in complete disarray with clothing strewn on

the floor and in the hall. Of particular concern were the presence of 13 computer towers and two laptops. The military

police asked Krupa for consent to take the computers and he

initially agreed. 

On Tuesday, April 16, 2002, Investigator Reynolds (who is

trained in, and specializes in investigating computers and digital evidence) was assigned to investigate the seized computers. In his initial search of the computers Reynolds located an

image of suspected contraband. This photograph appeared to

be of a nude 15- to 17-year-old female with a website label

of “www.nude-teens.com.” On Sunday, April 21, 2002, Reynolds was hospitalized for chest pain. The following day, both

Sgt. Velasco and Krupa revoked their consents to the search

of the computers. 

Reynolds remained hospitalized until April 25, 2002. While

in the hospital he sought consent for “military search authority” for the computers. The request was based on the photograph and the fact that consent had been revoked. Reynolds

sought “authority to continue this search for any further items

of contraband.” On April 29, 2002, Colonel LaFave, the

appointed Primary Search Authority Military Magistrate,

signed the search warrant.1 Reynolds resumed his forensic

analysis of the computers, locating adult pornography and 22

images of child pornography. 

Sometime thereafter, the matter was transferred to the Federal Bureau of Investigation (“FBI”). Both parties agree that

on May 14, 2002, during a non-custodial interview, an FBI

Special Agent showed Krupa the suspected child pornographic images recovered from one of the computers and

asked him if he recognized the images. Krupa allegedly stated

that he “had probably viewed all the images because he recog1Krupa’s appeal does not question the propriety of Colonel LaFave acting as the issuing magistrate. 

UNITED STATES v. KRUPA 2263
nized that the structure of the filename printed above the computer images to be the same structure he uses to name

computer files on his computers.” On the basis of the evidence obtained pursuant to the military search warrant and

Krupa’s statement, the FBI sought and procured a federal

search warrant from Judge Wanger of the Eastern District of

California.2

Krupa was indicted for violating 18 U.S.C. § 2252(a)(4) —

possession of visual depictions of minors engaging in sexually

explicit conduct. Krupa moved to suppress the evidence

seized from his computer. The district judge found that Krupa

had standing to challenge the seizure of the computers and

had withdrawn his consent. The district court determined that

although the single photograph was insufficient to show probable cause, citing United States v. Battershell, 457 F.3d 1048

(9th Cir. 2006), the motion to suppress would be denied under

the good-faith exception set forth in United States v. Leon,

468 U.S. 897 (1984).

Krupa then pled guilty to receipt of materials depicting sexual exploitation of minors and entered into a plea agreement

which reserved his right to appeal the denial of the motion to

suppress. He was sentenced to 41 months of incarceration. 

We review de novo the district court’s denial of a motion

to suppress evidence. United States v. Hill, 459 F.3d 966, 970

(9th Cir. 2006). We review for clear error a magistrate’s finding of probable cause to issue a search warrant, as well as a

Leon good-faith exception, and give “great deference” to such

findings. Id.; see also United States v. Hay, 231 F.3d 630, 634

n. 4 (9th Cir. 2000).

[1] As we noted in Hill, our review starts with the Constitution. We stated:

2

It appears that ultimately 52 images and an additional 48 movies of

child pornography were located within the computers. 

2264 UNITED STATES v. KRUPA
“[N]o 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.” U.S. Const. amend. IV. The

Constitution is clear; a magistrate may authorize a

search of a location only if officers establish probable cause to believe evidence of a crime may be

found there. Probable cause means only a “fair probability,” not certainty, and requires consideration of

the totality of the circumstances. Illinois v. Gates,

462 U.S. 213, 238, . . . (1983).

Hill, 459 F.3d at 970. In Gates, the Supreme Court observed

that:

The task of the issuing magistrate is simply to make

a practical, common-sense decision whether, given

all the circumstances set forth in the affidavit before

him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information,

there is a fair probability that contraband or evidence

of a crime will be found in a particular place. And

the duty of a reviewing court is simply to ensure that

the magistrate had a “substantial basis for . . . conclud[ing]” that probable cause existed. Jones v.

United States [362 U.S. 257, 271 (1960)].

In applying this standard, we have reiterated the Supreme

Court’s directive that a magistrate’s determination of probable

cause should be paid great deference by reviewing courts. See

Millender v. County of Los Angeles, 620 F.3d 1016, 1025 (9th

Cir. 2010); U.S. v. Kelley, 482 F.3d 1047, 1050 (9th Cir.

2007); Battershell, 457 F.3d at 1050.

[2] We have further noted that Gates signaled a change

from a technical approach to probable cause to “a return to the

‘totality of the circumstances’ test and emphasized that probable cause means ‘fair probability, not certainty or even a preUNITED STATES v. KRUPA 2265
ponderance of the evidence.’ ” United States v, Gourde, 440

F.3d 1065, 1069 (9th Cir. 2006) (en banc). In Kelley, we

explained that “[w]hether there is a fair probability depends

upon the totality of the circumstances, including reasonable

inferences, and is a ‘commonsense, practical question,’ ” for

which “[n]either certainty nor a preponderance of the evidence is required.” 482 F.3d at 1050 (quoting Gates, 462 U.S.

at 246, and Gourde, 440 F.3d at 1069).

[3] Although this is a close case, we conclude that Colonel

LaFave could reasonably conclude that there was probable

cause to issue a search warrant. The district court reasonably

thought that pursuant to Battershell, the single picture of a

nude teenage girl was not sufficient in itself to support a

search warrant. Here, however, the picture must be placed in

the context of the exigent unusual circumstances. Military

police, responding to a call from a distressed mother, went to

a home on the military base assigned to Sgt. Velasco. They

found that Sgt. Velasco was not at home, was not even in the

country, and was not expected to return for another nine days.

His minor children were living in what Krupa’s brief

describes as “complete disarray,” under the purported supervision of Krupa, who was a civilian with no apparent connection to the armed forces. Moreover, Krupa had control over

the 13 computer towers and two laptops that were in the

home. The military police found this concentration of computers in such a surrounding to be suspicious and sought to

take the computers. Krupa consented to the police taking the

computers. Reynolds was then assigned to investigate whether

the computers were being used for criminal purposes. His initial investigation revealed a picture of a nude teenager, which

he believed was evidence of child pornography. But before he

could confirm that the computers were being used to store

child pornography, or possibly used for other criminal activity, Reynolds’ investigation was interrupted by his health

problems.

[4] Thus, when Reynolds sought to continue his ongoing

investigation, Krupa’s intervening revocation of his consent to

2266 UNITED STATES v. KRUPA
the search of the computers required that Reynolds obtain a

warrant to continue his investigation. At that point in time the

picture of a nude teenager, with its tag “www.nudeteens.com,” was strong supporting evidence that the fifteen

computers found in a home in disarray on a military base

were being used for criminal purposes. Moreover, a ten-yearold girl and a five-year-old boy were living in the disheveled

residence. Accordingly, Colonel LaFave could reasonably

conclude that was probable cause to support the issuance of

the search warrant.

[5] Our opinion in Battershell, does not compel a contrary

perspective. There, we held that a single photograph of a

young girl between 8 and 10 standing nude in a bath tub is

insufficient to establish probable cause. 457 F.3d at 1051.

However, we went on to hold that a second picture and the

totality of the circumstances did establish probable cause and

we affirmed the denial of the motion to suppress. Id. at 1054.

In Battershell, other than the two photographs extracted from

Battershell’s computer, there was no reason for the authorities

to suspect any criminal activity. Similarly, in Hill, but for a

computer technician’s discovery of what she believed to be

child pornography on the defendant’s computer, 459 F.3d at

968, there was no indication of criminal activity.3 In contrast,

here, the presence of fifteen computers under the control of a

civilian with no apparent ties to the military in a home of a

sergeant (who was out of the country) on a military base in

which two minor children resided and which was in “com3The difficulty inherent in determining whether a photograph of a minor

is a “lascivious exhibition of the genitals or pubic area” as proscribed by

18 U.S.C. § 2256(2)(A)(v), the issue in Battershell, is illustrated by the

subsequent opinion in Hill, 459 F.3d 966. In Hill, we determined that a

state judge finding of probable cause was “well within his discretion,”

even though the description of the photographs (on which the judge issued

the warrant ) was not very different from the description of the first photograph in Battershell. See Hill, 459 F.3d at 968-69, 972. Moreover, Battershell and Hill were decided well after Colonel LaFave issued the search

warrant in this case and thus were not available to guide his decision. 

UNITED STATES v. KRUPA 2267
plete disarray” is unquestionably suspicious. Thus, in this

context, even if the picture by itself was insufficient to establish probable cause, when supplemented with its tag

“www.nude-teens.com,” and the fact that Reynolds had only

started his investigation of the 15 computers, we cannot say

that Colonel LaFave could not reasonably conclude that there

was “a fair probability that contraband or evidence of a

crime” would be found on the computers. 

In addition, although not addressed by the parties, we note

that the search took place on a military base and that our case

law at least suggests that civilians such as Krupa impliedly

consent to searches when they enter a military base. See Morgan v. United States, 323 F.3d 776, 778 (9th Cir. 2003) (holding that a warrantless search of a person seeking to enter

Edwards Air Force Base may be deemed reasonable based on

the implied consent of the person searched).

In sum, giving the appropriate deference to Colonel

LaFave’s determination as required by Gates, 462 U.S. 213,

and our own precedent, we conclude that he could have reasonably determined that there was probable cause to support

the issuance of the search warrant. Accordingly, the district

court’s denial of Krupa’s motion to suppress is AFFIRMED.

4

BERZON, Circuit Judge, dissenting:

The majority seems to imagine “probable cause” as a cloud

that follows certain people around, created by their idiosyncratic habits and irresponsible friends, and persisting even

though the individuals are not suspected of any particular

4Because we determine that Colonel LaFave could have reasonably concluded that there was probable cause to issue the search warrant, we need

not, and do not, consider the district court’s invocation of the good-faith

exception set forth in United States v. Leon, 468 U.S. 897 (1984). 

2268 UNITED STATES v. KRUPA
crime. This “probable cause” cloud, the majority imagines, is

available for invocation by law enforcement to justify virtually any search. But, as the case law makes clear, probable

cause does not exist in the air. And probable cause to think

that someone is odd or a slob or that his friend is a negligent

father does not justify seizing and searching his computers. 

Instead, to justify a Fourth Amendment search, there must

be probable cause to think that “contraband or evidence of a

crime will be found in a particular place.” Illinois v. Gates,

462 U.S. 213, 238 (1983). In a case, such as this one, where

the items to be seized — images on a computer — could be,

and usually are, innocuous in nature, an affidavit in support

of a search warrant must establish a “fair probability” that the

images actually are contraband or evidence of a crime. Id.

Here, “the more precise question we must answer is whether

the officer’s affidavit established probable cause that the

images on the defendant’s computer were — as described —

lascivious.” United States v. Hill, 459 F.3d 966, 970-71 (9th

Cir. 2006); cf. Millender v. County of Los Angeles, 620 F.3d

1016, 1030 (9th Cir. 2010) (en banc) (holding that probable

cause to believe that guns are present in a location does not

establish probable cause to search, as “the possession and purchase of guns by itself does not constitute contraband or evidence of a crime.”). 

Because the majority loses sight of these fundamental precepts, I respectfully dissent.

I.

Although the majority stresses that we are to give “great

deference” to a magistrate’s probable cause finding, Maj. op.

at 2264 (quoting Hill, 459 F.3d at 970), deference has never

meant abdicating our role to ensure that the Fourth Amendment is respected. As explained in Gates, this deference is

meant to account for “the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant,” lest police

UNITED STATES v. KRUPA 2269
conclude that warrants are simply not worth the trouble and

“resort to warrantless searches, with the hope of relying on

consent or some other exception to the Warrant Clause that

might develop at the time of the search.” 462 U.S. at 236.

Accordingly, Gates instructs us to interpret affidavits in a

“commonsense,” rather than “hypertechnical” manner, id.,

resolving “doubtful or marginal cases” in favor of upholding

the warrant’s validity, id. at 237 n.10 (citation omitted); see

also Millender, 620 F.3d at 1030 (“[W]e are deferential to a

magistrate’s determination of probable cause and consider the

language of a warrant and affidavit in a common sense and

practical manner.”).

Nonetheless, Gates was clear that we “must continue to

conscientiously review the sufficiency of affidavits on which

warrants are issued” to ensure that the magistrate’s issuance

of the warrant was not “a mere ratification of the bare conclusions of others.” 462 U.S. at 239. In practice, applying the

requisite deference means that we look to see whether there

was “a ‘substantial basis’ for probable cause to search.” Millender, 620 F.3d at 1030 (quoting United States v. Leon, 468

U.S. 897, 915 (1984)). 

This is not a “doubtful or marginal case[ ].” Gates, 462

U.S. at 237 n.10. The affidavit supporting the search warrant

for Krupa’s computers was indubitably inadequate to provide

probable cause. As the district court noted, there was but a

single fact arguably supporting probable cause: the discovery

of a photograph that “appeared to be of 15 to 17 year old

female with a web site label of www.nude-teens.com.”

II.

Before turning to that single fact, I note that the majority

maintains that the following additional facts also supported

probable cause: that Sgt. Velasco was out of the country and

had left his two children in the care of Krupa, who was a

civilian; that the home was “complete disarray”; and the pres2270 UNITED STATES v. KRUPA
ence of 15 computers.1

 Maj. op. at 2266. I agree with the district court that none of these additional factors have any

pertinence at all to whether the warrant was issued with probable cause to believe that Krupa possessed child pornography.

First, the living conditions of the residence, however

deplorable, were not mentioned in the affidavit for the military search warrant. Similarly, the affidavit makes no mention

of Sgt. Velasco’s whereabouts; it states only that when an

officer visited the residence, “there were no custodial parents

at the house[,] only [Krupa,] who was not affiliated with the

military.” So, even if these facts were at all probative of possession of child pornography — which they are not — they

cannot validate the issuance of the warrant. “[I]n reviewing a

search warrant, we are ‘limited to the information and circumstances contained within the four corners of the underlying

affidavit.’ ” Millender, 620 F.3d at 1029 (quoting Crowe v.

County of San Diego, 593 F.3d 841, 869 (9th Cir. 2010)).

As to the facts that were mentioned in the affidavit, we

must consider, of course, “the totality of the circumstances”

in assessing probable cause. United States v. Hay, 231 F.3d

630, 634 n. 4 (9th Cir. 2000) (quoting Gates, 462 U.S. at

238). But a particular fact is only relevant to this inquiry insofar as its existence makes it more likely that the suspect is

engaged in the criminal activity suspected. See, e.g., Millender, 620 F.3d at 1030; Gonzalez-Rivera v. INS, 22 F.3d

1441, 1446-47 (9th Cir. 1994). Neither the government nor

the majority explains how the fact that Krupa was a civilian

living on a military base makes it more likely that there was

1The government suggests as well that the “defendant’s first providing

consent to review his many computers and then revoking this consent”

supported probable cause. The affidavit supporting the warrant application

also recited this fact as supporting probable cause. But “refusal to consent

to a warrantless search is privileged conduct which cannot be considered

as evidence of criminal wrongdoing.” United States v. Prescott, 581 F.2d

1343, 1351-52 (9th Cir. 1978); see also Gasho v. United States, 39 F.3d

1420, 1438-39 (9th Cir. 1994) (same). 

UNITED STATES v. KRUPA 2271
child pornography on his computers, and I certainly see no

connection. This fact is just useless trivia. 

The same is true with regard to the fact that there were 15

computers in the home. Neither the majority nor the government has explained how this fact makes it one whit more

likely that Krupa had child pornography. There is not even the

bare assertion that, for example, having that many computers,

which Krupa apparently refurbished and resold, fits a “profile” of a collector of child pornography, such as the one discussed in United States v. Gourde, 440 F.3d 1065, 1072 (9th

Cir. 2006) (en banc). The government asserts that the computer collection is “suspicious[ ],” but does not endeavor to

explain why, or how this “suspicion” is at all related to the

conclusion that the computers had child pornography (or any

other contraband) on their hard drives. As we recently had

occasion to note, “even inexpensive electronic storage media

today can store the equivalent of millions of pages of information.” United States v. Comprehensive Drug Testing, Inc., 621

F.3d 1162, 1176 (9th Cir. 2010) (en banc). So it is certainly

not common knowledge that having multiple computers

instead of one makes collecting even very large amounts of

child pornography any more likely; a person so inclined can

download reams of child pornography on a single computer

with an internet connection. See id.

2

2The majority’s invocation of Morgan v. United States, 323 F.3d 776,

778 (9th Cir. 2003) to suggest that “civilians such as Krupa impliedly consent to searches when they enter a military base,” Maj. op. at 2268, fails

badly. There is a very good reason why this argument was, as the majority

notes, “not addressed by the parties,” id.: it is undisputed that Krupa did

not consent. In fact, Krupa expressly revoked his consent to Reynolds

searching his computers. See Maj. op. at 2263 (“[B]oth Sgt. Velasco and

Krupa revoked their consents to the search of the computers.”). Thus, to

make any sense at all, the majority’s suggestion that Krupa impliedly consented to the search of his computers (even after he had revoked his

express consent) must encompass the notion that this implied consent was

irrevocable. The majority provides nothing to support this radical suggestion.

2272 UNITED STATES v. KRUPA
III.

That leaves just the photograph, which was not included

with the affidavit in support of the search warrant. The photo

was described only as “appear[ing] to be of 15 to 17 year old

female.”

United States v. Battershell, 457 F.3d 1048 (9th Cir. 2006)

dictates that this bare description cannot possibly provide

probable cause. As Battershell relates:

Federal law defines five categories of “sexually

explicit conduct” with respect to child pornography.

The first four categories deal with specific conduct

that is easy to identify and describe: “(i) sexual intercourse, including genital-genital, oral-genital, analgenital, or oral-anal, whether between persons of the

same or opposite sex; (ii) bestiality; (iii) masturbation; [and] (iv) sadistic or masochistic abuse . . . .

The fifth category . . . is the “lascivious exhibition

of the genitals or pubic area of any person.”

Id. at 1051 (quoting 18 U.S.C. § 2256(2)(A)).3 The affidavit

in this case makes no mention of any particular conduct, so

the photograph found on Krupa’s computer can only have

fallen into the fifth category. 

The affidavit stated only that the female appeared to be 15

Moreover, Morgan concerns only an implied consent to a search of the

person on initial entry onto a military base. Morgan does not suggest, nor

does any other case of which I am aware, that implied consent carries over

as long as the civilian is on the base (or here, even after he has left the

base) and is transferred to his far-out-of-reach possessions as well as his

person. 

3Cal. Penal Code § 311.3, also recited by the affidavit, is identical in all

material respects. 

UNITED STATES v. KRUPA 2273
to 17 and was nude. It said nothing about what parts of her

body were depicted, much less that they were exhibited lasciviously — that is, “so presented by the photographer as to

arouse or satisfy the sexual cravings of a voyeur.” Hill, 459

F.3d at 972 (quoting United States v. Wiegand, 812 F.2d

1239, 1244 (9th Cir. 1987)). And of course, “not all images

of nude children are pornographic.” Id. at 970; see also id.

(“For example, ‘a family snapshot of a nude child bathing

presumably would not’ be criminal.” (citation omitted)).

Indeed, “the law recognizes that some images of nudity may

merit First Amendment protection because they serve artistic

or other purposes, and possessing those images cannot be

criminal.” Id. The affidavit supporting the search warrant said

absolutely nothing from which one could conclude that this

image was child pornography, rather than art. For all we know

from this description, the photograph was taken by a latterday Renoir, intent on portraying from the back a young

woman bathing. 

The upshot is that here, as in Battershell, the affidavit’s

terse description, absent an accompanying photograph, is insufficient to establish probable cause that

the photograph lasciviously exhibited the genitals or

pubic area because [its] conclusory statement is an

inherently subjective analysis and it is unclear if the

photograph exhibited the young female’s genitals or

pubic area.

Battershell, 457 F.3d 1051.

In one respect, the affidavit here is even more deficient

than that in Battershell, which involved a young female estimated at 8 to 10 years of age. Id. The subject of the photograph here, by contrast, appeared to be 15 to 17 years old.

Had that estimate been low by just a year, this photograph

would not have been illegal child pornography, but rather,

2274 UNITED STATES v. KRUPA
perfectly legal adult pornography, injecting an additional factor of uncertainty absent in Battershell.

That the photograph had “a web site label” of www.nudeteens.com adds nothing to the probable cause analysis, at least

absent some effort — apparently not undertaken here, despite

ample opportunity to do so — to ascertain whether that website actually provides pornographic photographs of underage

teenage girls. The website name itself does not indicate that

some, much less most or all, of the photographs on it were

pornographic, nor is there any other evidence so indicating.

By way of contrast, in Gourde, the search warrant affidavit

contained “unequivocal” evidence that a particular website (of

which the defendant was a paid subscriber) “was a child pornography site whose primary content was in the form of

images.” 440 F.3d at 1070. Not only did the owner admit as

much, see id., but a government agent also extensively

explored the website, see id. at 1067. Here, in contrast, the

only thing we know is that the photograph had a uniform

resource locator (URL) “label” of “www.nude-teens.com.” 

In sum, the only conclusion consistent with Battershell is

that the affidavit did not provide probable cause for the search

warrant.

IV.

As to the Leon holding of the district court, it won’t wash

either. As already described, there is simply no question that

the warrant here was issued on precisely the sort of impermissibly “bare bones” affidavit of which Gates warned, see

Gates, 462 U.S. at 239, and no reasonable officer would have

thought that it provided probable cause. See Leon, 468 U.S.

at 899 (“[A]n officer [does not] manifest objective good faith

in relying on a warrant based on an affidavit so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable.”); United States v. Weber,

923 F.2d 1338, 1346 (9th Cir. 1990) (same). 

UNITED STATES v. KRUPA 2275
I note that the government has not argued that this was a

situation requiring quick decisionmaking or a hastily-drafted

affidavit. For good reason. Although Reynolds’ illness obviously complicated matters, that fact, even coupled with the

revocation of consent, did not create the risk that Krupa

would destroy incriminating evidence, as the computers were

in the government’s possession. 

Nonetheless, the majority suggests that there were “exigent” circumstances. Maj. op. at 2266. That is simply untrue.

As the majority relates, the computers were seized on April

12. From that point on, the computers were in the possession

of the government, the children were safely in the custody of

their mother, and Krupa was told that he was not permitted to

stay in Sgt. Velasco’s residence. Thus, if there was any exigency, it had long since dissipated when Reynolds obtained

the search warrant some two weeks after the computers were

seized. So, the majority’s suggestion notwithstanding, “there

was no need for the ‘hurried judgment’ upon which law

enforcement decisions must often be based,” Weber, 923 F.2d

at 1346 (citation omitted), and, as in Weber, “[a]lthough we

need not question the subjective good faith of the government,

it acted entirely unreasonably in preparing the affidavit it

presented.” Id. 

Conclusion

For the foregoing reasons, I would hold that the affidavit

did not provide probable cause to search Krupa’s computers,

reverse the district court’s application of Leon’s good-faith

exception, and remand for consideration of whether, after

excising the suppressed evidence from the affidavit supporting the second search warrant, probable cause remained for

the issuance of the second search warrant. 

I cannot help but think that had this case involved anything

but child pornography, it would come out differently. I fear

that understandable abhorrence of this particular crime can

2276 UNITED STATES v. KRUPA
infect judicial judgment. We would do well to remember that

the protections of the Fourth Amendment do not depend on

the nature of the suspected criminal activity, any more than

they do on the race or gender of the suspect. And that is particularly so where the issue is the searching of personal computers, on which more and more extremely sensitive

information is stored. See Comprehensive Drug Testing, 621

F.3d at 1176-77. 

I respectfully dissent.

UNITED STATES v. KRUPA 2277