NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. WESLEY STEVEN BOHANNON, Defendant

- Appellant. No. 21

- 10270
D.C. No. 3:19

- cr - 00039 -CRB- 1

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted February 13, 2023

Submission vacated February 24, 2023 Resubmitted August 30, 2023 San Francisco, California Before: MILLER, SANCHEZ, and MENDOZA, Circuit Judges. Wesley Bohannon appeals his conviction for possession of child pornography , in violation of 18 U.S.C. § § 2252(a)(4)(B), (b)(2) . We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

AUG 30 2023 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 “ We review the district court’s denial of [a ] motion to suppress de novo and the district court’s underlying factual findings for clear error.” United States v. Wilson , 13 F.4th 961, 967 (9th Cir. 2021)

. “ We review for clear error a magistrate’s finding of probable cause to issue a search warrant, and give ‘great deference’ to such findings.” United St ates v. Krupa , 658 F.3d 1174, 1177 (9th Cir. 2011) (quoting United States v. Hill , 459 F.3d 966, 970 (9th Cir. 2006)). 1. The district court did not err in denying Bohannon’s motion to suppress the evidence acquired as a result of Microsoft’s initial report to the National Center for Missing and Exploited Children (NCMEC). A ssum ing without deciding that Bohannon had a reasonable expectation of privacy in his OneDrive file, we conclude tha t the private

- search exception to the Fourth Amendment’s warrant
requ irement applies. Under the private

- search exception, “an antecedent private search excuses the government from obtaining a warrant to repeat [a] search but only when the government search does not exceed the scope of the private one.” Wilson , 13 F.4th at 968.
In ruling on the motion to sup press , the district court did not expressly make a finding on whether a Microsoft employee viewed the contents of Bohannon’s file before the file was sent to NCMEC. We therefore remanded this case “for the limited purpose of allowing the district court to make additional findings and to determine whether a Microsoft employee viewed the contents of Bohannon’s3 OneDrive file before the file was forwarded to NCMEC.” Dkt. No. 44. On remand, the district court found that a Microsoft employee indeed viewed the fil e. Thus, even assuming that NCMEC qualifies as a government actor, the private

- search exception excused it from obtaining a warrant to inspect the contents of Bohannon’s file. The district court’s finding was not clearly erroneous . When Microsoft sent its alert to NCMEC, it wrote “Yes” in response to the form question, “Did Reporting ESP view entire contents of uploaded file?” And the government introduced declarations from Sean Davis, Head of Digital Safety Operations at Microsoft, and Alon Brown, Partner Director of Microsoft’s Digital Trust and Safety Team, stat ing that the response on the form indicates that “someone at Microsoft reviewed the image at issue before it was transmitted to NCMEC.” Bohannon presented no evidence contradicting those declarati ons. Instead, he argues that, because neither Davis nor Brown held their respective positions when the file was s ent to NCMEC in 2017, their declarations shed no light on what Microsoft’s reporting practice was at the relevant time. But even if the declara tions speak only to Microsoft’s current practice, it is reasonable to infer, based on the plain language of the report , that Microsoft meant the same thing by answering “Yes” in 2017 that it does today. At a minimum, the district court did not clearly

err in drawing that common

- sense inference. Finally, as the district court noted in4 denying Bohannon’s motion for reconsideration, the government also provided supplemental evidence that two Microsoft employees manually reviewed Bohannon’s file and confirmed it contained child pornography. Nor did the district court abuse its discretion in denying Bohannon’s motion for an evidentiary hearing. As the preceding di scussion demonstrates, there was no

“ genuine issue of material fact requiring an evidentiary hearing.” United States v. Henderson , 241 F.3d 638, 649 (9th Cir. 2000), as amended (Mar. 5, 2001)

. Bohannon also argues that the private

- search exception does not apply because Microsoft did not “freely ma[ke] [the file] available” to NCMEC but instead did so only under legal compulsion

. United States v. Jacobsen , 466 U.S. 109, 119 (1984)

. Although Microsoft was obligated to make a report to NCMEC, it was not obligated to search for files or include the file in its report . 18 U.S.C. §§ 2258A(b)(4) , (f)

. The private

- search exception therefore applies

. See United
States v. Rosenow , 50 F.4th 715, 730 (9th Cir. 2022) ( Insofar as electronic service providers “are free to choose not to search their users’ data

. . . , when they do search, they do so of their own volition.”), cert. denied , 143 S. Ct. 786 (2023)

. 2. The magistrate did not clearly err in finding probable cau se to issue the warrant authorizing the search of Bohannon’s OneDrive account

. See Krupa , 658 F.3d at 1177. A search warrant must be supported by probable cause, which requires only a “fair probability” that evidence of a crime will be found in the place5 to be searched. Id. (quoting Hill , 459 F.3d at 970 ). Bohannon argues that, because the underlying affidavit d id not say when Microsoft first detected child pornography in his file, there was no way for the magistrate to know how much time had passed since the file was discovered and thus no way for the magistrate to assess the likelihood that the file still exist ed in the OneDrive account. But t he affidavit stated that the investigating officer had been assigned the report from
NCMEC on ly two days earlier

. And the affidavit suggested that the user of the OneDrive account had not been notified of the government’s investigation. Given th at information, a magistrate could draw a “practical, common - sense ” conclusion that there was a fair probability that child porno graphy would be found i n the OneDrive account. United States v. Gourde , 440 F.3d 1065, 1066 (9th Cir. 2006) (en banc) (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983))

. AFFIRMED.