NOT FOR PUBLICATION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

Plaintiff

- Appellee,

v. DAVID W. TIPPENS,

Defendant

- Appellant. No. 17

- 30117
D.C. No. 3:16

- cr - 05110

- RJB

- 1

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding Argued and Submitted May 17, 2019 Seattle, Washington
Before: HAWKINS and W. FLETCHER, Circuit Judges, and BURY, ** District Judge. David W. Tippens appeals from his conviction for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4) and (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.

** The Honorable David C. Bury, United States District Judge for the District of Arizona, sitting by designation. 

# FILED

JUN 12 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

The parties are familiar with the facts. We refer to them only insofar as necessary to explain our decision. On appeal, Tippens challenges the district court’s denial of his motion s to dismiss the indictment and to suppress the NIT and Washington warrant s. 1. T ippens argues that the district court erred in denying the motion to
dismiss the indictment based on outrageous government conduct and abused its discretion in declining to exercise its supervisory powers , a decision w e review de

novo
. See U

nited S tates v. Black , 733 F.3d 294, 30 1 (9th Cir. 2013)

. The district

court here did not err : Even if the government acted outrageously in allowing Playpen to continue to operate for two weeks , its conduc t was not so outrageous
that it violated due process and warrant ed dismissal of the indictment under the “totality of the circumstances , ” especially given “ the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue. ” Black , 733 F.3d at 30 3

- 04. Permitting the site to continue to operate for this limited time allowed the government to identify and prosecute numerous individuals involved in the child pornography industry, and to rescue 49
children from sexual exploitation

. United States v. Anzalone , 923 F.3d 1, 6 ( 1st Cir. 2019).
We review for abuse of discretion t h e district court’s decision declining to exercise its supervisory powers

. See Black , 733 F.3d at 301. Here, there was no3

abuse of discretion because the district court did not unreasonably weigh the Black
factors

. 2. Our holding in United States v. Hender son , 906 F.3d 1109, 1114

- 20 ( 9th Cir. 2018) f

orecloses consideration of the NIT warrant issues raised in Tippens’ motion to suppress. Even though the warrant violated Rule 41(b), the “good faith exception applies to bar suppression of evidence obtained [] pursuant
to the NIT warrant.” Id. at 1120.
3. Tippens also contends that the district court erred in denying the motion to suppress all evidence obtained pursuant to the Washington warrant

. He
argues that Pierce County Detective Douglas Shook intentionally or recklessly made false and/or materially misleading statements and omissions in the affidavit supporting the Washington warrant and , therefore, the Washington warrant lacked probable cause. We review de novo a “district court’s determination ‘ [w]hether probable cause is lacking because of alleged misstatements or omissions in the supporting affidavit. ’ ” United States v. Elliott , 322 F.3d 710, 714 (9th Cir. 2003) (quoting United States v. Reeves , 210 F .3d 1041, 1044 (9th Cir. 2000)). We
review for clear error a district court’s factual findings as to whether “any statements [in the probable cause affidavit] were false or omitted and whether any such statements were intentionally or recklessly made.” E lliott , 322 F.3d at 714.
T he district court did not clearly err in finding that Shook did not4

intentionally or recklessly make false or misleading statements in the affidavit about Tippens downloading child pornography

. In the affidavit, Shook stated th at Tippens accessed a series of posts on Playpen containing i mages depicting child pornography i n February 2015 and that such images would have been “downloaded” and displayed on his computer upon accessing the posts. A t the
Franks 1 hearing, Shook clarified what he meant by the term “download , ” stating he
used the term “download” to refer to Tippens view ing images of child pornography on Playpen on his computer , not that he had stored the images on his computer at
that time

. The district court found that Shook was credible , a finding which we “pay special deference to” and will not disturb

. El liott , 322 F.3d at 71 5

. At the Franks hearing, Shook also admitted that he knew that the Tor
browser contained a feature that was designed to prevent the automatic downloading of data onto a user’s computer that normally occurs when viewing a public website (referred to as the “disk avoidance feature”) , but did not include this
information in the affidavit

. Shook testified that, in his experience, the Tor browser did not completely eliminate trace digital evidence from a user’s

1 The reference is to Franks v. Delaware , 438 U.S. 154 (1978) . To prevail on a Franks challenge, “the defendant must establish . . . the affiant officer intentionally or recklessly made false or misleading stat ements or omissions in support of the warrant and

. . . that the false or misleading statement or omission was material, i.e., necessary to finding probable cause.” United States v. Perkins , 850 F.3d 1109, 1116 (9th Cir. 2017) (citation and internal quota tion marks omitted)).5

computer, which the district court determined was credi ble. Consistent with his testimony, the affidavit alleges that a computer may unintentionally retain digital
evidence.
W e are not left with a “definite and firm” conviction that the district court clearly erred in concluding that Shook did not intentionally or recklessly omit such
information from the affidavit. United States v. Perkins , 850 F.3d 1109, 1115 (9th Cir. 2017)

. There is no evidence that Shook intended to mislead the magistrate judge into concluding probable cause existed when it d id not or that Shook knew or had a “high degree of awareness” that the information in the affidavit was false or misleading without the information about the Tor browser’s disk

- avoidance
feature. United States v. Senchenko , 133 F.3d 1153, 1158 (9th Cir. 1 998). W e cannot say that the district court’s view of the evidence was clearly erroneous
under these circumstances

. See Elliott , 322 F.3d at 715 ( “ Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” (citation and internal quotation marks omitted)).
The district court did not err in concluding that there was probable cause to

sear ch Tippens’ Washington residence based upon the totality of the circumstances
which included : (1) Playpen was an illegal child pornography site; (2) Tippens created an account on Playpen under the username candygirl123 in Hawaii , maintained it for more tha n three months, and actively logged into the site for 266

hours; (3) trace digital evidence could be recovered from a user’s computer of the user’s internet activities; and (4) the reasonable inference that Tippens likely carried, as opposed to shipped, a c omputer or laptop when he moved from Hawaii

to Washington . Such facts and inferences demonstrated that there was a “fair probability” of finding digital evidence of child pornography on Tippens’ computer

. See Illinois v. Gates , 462 U.S. 213, 238 (1983) ; see also United States
v. Gourde , 440 F.3d 1065, 1071 (9th Cir. 2006).
4. Since we conclude that the district court did not err in denying the motion to suppress the Washington warrant, we need not consider whether the good faith exception appl ies. 2
AFFIRMED.

2 The American Civil Liberties Union (“ACLU”)’s and the ACLU of Washington’s motion for leave to file an amicus brief (Docket Entry No. 14) is granted.