Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MLATTER comes before the Court on the United States’ Motion to Reconsider Suppression Order (Doc. 127) and Reopen the Suppression Hearing, filed June 9, 2011 (Doc. 133)(“Motion to Reconsider”). The Court held a hearing on July 8, 2011, an evidentiary hearing on August 3, 2011, and a hearing on August 4, 2011. The primary issues are: (i) whether the Court should reopen the suppression hearing; (ii) whether the Court should reconsider its Amended Memorandum Opinion and Order, filed May 25, 2011 (Doc. 127), because, at the suppression hearing, the United States mistakenly conceded that, when Deputy David Littlefield looked through a crack in the blinds covering Christy’s residential window, it was clearly a search that required an exception to the warrant requirement; (iii) whether the Court should reconsider its Amended Memorandum Opinion and Order in light of the collective-knowledge doctrine; (iv) whether the Court should reconsider its Amended Memorandum Opinion and Order, because the Bernalillo County Sheriffs Office (“BCSO”) deputies would have inevitably discovered the same evidence through lawful means, because they would have entered Christy’s residence pursuant to exigent circumstances upon learning that the minor girl — K.Y.—was suicidal, depressed, and off her medication; and (v) whether the Court should reconsider its Amended Memorandum Opinion and Order, because law enforcement officers would have obtained search warrants and discovered the evidence. The Court will grant in part and deny in part the United States’ motion. The Court reopened the suppression hearing and took more evidence from the parties. The Court finds that the United States did not mistakenly concede that, when Littlefield looked through a crack in the blinds, it was a search, and finds that Littlefield conducted an unconstitutional search by looking in the crack in the blinds. That there has been an unconstitutional search does not end the inquiry; there is a distinction between the Fourth Amendment of the United States Constitution analysis of search and seizure and the suppression rule. They are distinct concepts. The Court will apply the collective-knowledge doctrine to its analysis of exigent circumstances and probable cause. The Court finds that exigent circumstances would not have justified the deputies’ entry into Christy’s residence. The Court thus continues to conclude that the warrantless entry into and search of Christy’s residence was unconstitutional. Nevertheless, the Court will apply the inevitable discovery doctrine, an exception to the suppression rule, and even though the entry and search were unconstitutional, not suppress the evidence, because, after a consideration of the relevant factors, the Court finds that Orange County Investigator Paul Carvo would inevitably have obtained search warrants and discovered the evidence the Court suppressed, despite the unconstitutional entry and search. FACTUAL BACKGROUND Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d)(“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.’,’). The findings of fact in this Memorandum Opinion and Order shall serve as the Court’s essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Garcia, 324 Fed.Appx. 705 (10th Cir.2009)(“We need not resolve whether Crawford’s protection of an accused’s Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court’s error cannot be adjudged ‘plain.’ ”), cert. denied, — U.S. -, 130 S.Ct. 223, 175 L.Ed.2d 154 (2009); United States v. Merritt, 695 F.2d at 1269. The Court incorporates its factual findings set forth in the Court’s Amended Memorandum Opinion and Order, filed May 25, 2011 (Doc. 127). 1.Claudia McCarthy. 1. McCarthy, formerly Claudia Fletes, is a police officer for the City of Westminster. See Transcript of Hearing at 42:14-24 (taken August 3, 2011)(Kastrin, McCarthy)(“Aug. 3, 2011 Tr.”). 2. McCarthy is assigned to a detective bureau that works crimes against children and domestic violence. See Aug. 3, 2011 Tr. at 43:2-5 (Kastrin, McCarthy). 3. McCarthy is a member of the safe team task force, in which local agencies work with the Federal Bureau of Investigation (“FBI”) on cases where children are victims of crimes that are sexual in nature. See Aug. 3, 2011 Tr. at 43:9-12 (Kastrin, McCarthy). 4. On November 8, 2009, the father of a missing juvenile (hereinafter “K.Y.”) reported K.Y. missing to a Westminster Police desk officer. See Aug. 3, 2011 Tr. at 45:5-9 (McCarthy). 5. Initially, the investigators had no information suggesting that K.Y. traveled with an adult male to another state. See Aug. 3, 2011 Tr. at 45:10-13 (Kastrin, McCarthy). 6. On November 9, 2009, however, K.Y.’s father went to the Westminster police station and provided the desk officer with two photographs of an adult male, which he had found in KY.’s Yahoo! account. See Aug. 3, 2011 Tr. at 45:21-24 (McCarthy). 7. The adult male was completely nude in both photographs. See Aug. 3, 2011 Tr. at 45:25-46:5 (Kastrin, McCarthy). 8. K.Y.’s mother emailed the Westminster desk officer a user name for the website agematch.com, which she believed was associated with the person who sent the photographs to K.Y. See Aug. 3, 2011 Tr. at 46:7-11 (McCarthy). 9. McCarthy ran a Google search on the user name and came across another profile associated with consensual.com. See Aug. 3, 2011 Tr. at 46:17-19 (McCarthy). 10. To view the profile on consensual.com, McCarthy had to create a fictitious account; once McCarthy created a fictitious account and logged on, she was able to view a few photographs of the person’s profile. See Aug. 3, 2011 Tr. at 46:20-25 (Kastrin, McCarthy). 11. The photographs were of an adult male whose appearance matched the male in the nude photographs KY.’s father brought to the police station. See Aug. 3, 2011 Tr. at 46:25-47:3 (McCarthy). 12. The photographs of the adult male did not show any simulated sexual activity. See Aug. 3, 2011 Tr. at 58:21-25 (McMillian, McCarthy). 13. Based on McCarthy’s experience and training, McCarthy thought that the adult male was looking for a sexual relationship with K.Y., because K.Y. was missing and had nude photographs of an adult male man who used agematch.com and consensual.com. See Aug. 3, 2011 Tr. at 47:13-48:2 (Kastrin, McCarthy). 14. KY.’s father informed the investigators that he noticed two incoming calls from an unknown number on his daughter’s cellular telephone records. See Aug. 3, 2011 Tr. at 47:18-21 (McCarthy). 15. KY.’s father also showed the investigators photographs that K.Y. had sent to the person with whom she was communicating, one of which depicted K.Y. from her chest up with her breasts exposed. See Aug. 3, 2011 Tr. at 48:6-10 (McCarthy). 16. K.Y. was not simulating sexual activity in the photographs. See Aug. 3, 2011 Tr. at 58:12-19 (McMillian, McCarthy). 17. McCarthy does not know whether the electronic mail transmission exchange between K.Y. and Christy predated the photographs, or whether Christy solicited the photographs. See Aug. 3, 2011 Tr. at 58:18-19 (McMillian, McCarthy). 18. Based on McCarthy’s experience and training in crimes against children, she believed that the adult male “was seeking for [K.Y.] to send those photos for his sexual pleasure and to continue a sexual romantic relationship.” Aug. 3, 2011 Tr. at 63:22-64:7 (Kastrin, McCarthy). 19. McCarthy contacted Carvo, an investigator for the Orange County District Attorney’s Office, to let him know that she was investigating a missing juvenile whom she believed left the state with an adult male; McCarthy gave — to Carvo — KY.’s electronic mail address, her telephone number, and the electronic mail address that was used to send nude photographs of the adult male and to create an account on agematch.com. See Aug. 3, 2011 Tr. at 48:18-49:10 (Kastrin, McCarthy). 20. McCarthy gave Carvo this information because, at the time, he was working at the FBI office, and could obtain information regarding the internet protocol (“IP”) addresses associated with the electronic mail transmissions and regarding K.Y.’s cellular telephone records. See Aug. 3, 2011 Tr. at 49:11-15 (Kastrin, McCarthy). 21. On November 9, 2009, McCarthy and Detective McCormick conducted an interview with KY.’s parents; during the interview, KY.’s mother told the detectives that K.Y. was diagnosed with depression; that K.Y. had attempted suicide on several occasions, the last occasion being in March 2009; that K.Y. liked to cut her wrists; and that K.Y. had mental health issues for which she was on medication. See Aug. 3, 2011 Tr. at 49:16-50:5 (Kastrin, McCarthy); id. at 60:1-8 (McMillian, McCarthy). 22. KY.’s parents told McCarthy and McCormick that K.Y. was not on medication when she left, and that they were very concerned about her well-being and her safety. See Aug. 3, 2011 Tr. at 50:6-9 (Kastrin, McCarthy). 23. Her parents also told McCarthy and McCormick that they believed K.Y. posed a risk of suicide or harm to herself. See Aug. 3, 2011 Tr. at 50:10-12 (Kastrin, McCarthy). 24. McCarthy and McCormick searched KY.’s bedroom, where they located numerous journals, writing, and drawings. See Aug. 3, 2011 Tr. at 50:13-17 (McCarthy). 25. In the journals, K.Y. wrote that she enjoys cutting herself to relieve stress; she also wrote about her research regarding how a human body can lose one-eighth of its blood before dying and how she “likes to lose one-eighth of her blood.” Aug. 3, 2011 Tr. at 50:17-21 (McCarthy). 26. K.Y. wrote the last journal entry either the same week or the week before she went missing. See Aug. 3, 2011 Tr. at 50:24-60:1 (Kastrin, McCarthy). 27. The journal entries spanned a lengthy period of time; there was some consistency in the entries regarding “thoughts of suicide, cutting, blood loss, bondage, rape, [and] things of that nature,” and, as far as McCarthy understood, the journal entries were made while K.Y. was medicated. Aug. 3, 2011 Tr. at 64:13-20 (Kastrin, McCarthy). 28. The information that K.Y.’s parents relayed to McCarthy and McCormick about KY.’s mental health, in combination with K.Y.’s journals, led McCarthy to believe that K.Y. posed a suicide threat: [W]e now had reason to believe that she was in the presence of an adult male that she had met online for sexual purposes, she’s 16, she’s not allowed to give consent, she can’t give consent for sexual — to have a sexual relationship, we believed that she was in danger of herself and of the male that she was with. Aug. 3, 2011 Tr. at 51:7-12 (McCarthy). 29. McCarthy was also concerned that K.Y. was no longer on her medication. See id. at 51:13-15 (Kastrin, McCarthy). 30. After McCarthy and McCormick finished their interview with KY.’s parents, Carvo called McCarthy; he told her that the two telephone calls from an unknown number were from a 505 area code, which is a New Mexico area code, that K.Y. received the two telephone calls on November 7, 2009 and on November 8, 2009, and that the IP addresses associated with the electronic mail transmissions that K.Y. received matched an address associated with the 505 telephone number. See Aug. 3, 2011 Tr. at 51:19-52:5 (Kastrin, McCarthy). 31. Carvo provided McCarthy with the address — 2265 Kelly Road Southwest, Albuquerque, New Mexico. See Aug. 3, 2011 Tr. at 52:6-7 (Kastrin, McCarthy). 32. The timing of the two telephone calls to K.Y.’s telephone number on November 7, 2009 and 8, 2009 were significant, because the calls were close to the time the investigators believed K.Y. ran away. See Aug. 3, 2011 Tr. at 52:12-16 (McCarthy). 33. Based on this information, McCarthy believed that K.Y. was at 2265 Kelly Road SW. See Aug. 3, 2011 Tr. at 52:17-21 (Kastrin, McCarthy). 34. McCarthy knew all this information before making her first telephone call to the Bernalillo County Sheriffs Office (“BCSO”). Aug. 3, 2011 Tr. at 52:22-25 (Kastrin, McCarthy). 35. McCarthy believed that the circumstances presented an emergency situation, because there was evidence that K.Y. posed an active suicide risk, because K.Y. was off her medications and was possibly with an adult male in another state. See Aug. 3, 2011 Tr. at 53:1-7 (Kastrin, McCarthy). 36. McCarthy believed that K.Y. posed a risk of harm to herself and that the adult male posed a risk of harm to K.Y., because K.Y. could not consent to sexual activity with the adult male given that the age of consent in California is eighteen. See Aug. 3, 2011 Tr. at 53:8-12, 55:7-14 (Kastrin, McCarthy). 37. Although K.Y. wrote a runaway note, in which she stated that she was safe and that she would call later, these statements did not allay McCarthy’s worries that the situation presented an emergency. See Aug. 3, 2011 Tr. at 65:14-23 (Kastrin, McCarthy). 38. McCarthy contacted the BCSO and asked BCSO to do a welfare check. See Aug. 3, 2011 Tr. at 53:14-25 (Kastrin, McCarthy). 39. The BCSO dispatcher relayed the following information to BCSO deputies: WESTMINSTER CNTY WANTS UNITS TO 10-10 REF A 10-28 ... 10-28 FRM CALI SHES A 16 YR OLD FEMALE IS [K.Y.] DOB/09/29/93 LS ON SUNDAY ... AFTER A 27 CALI FOUND OUT THAT SHE HAD BEEN EMAILING A MALE EDWARD S CHRISTY DOB/6/08/52 AND THE MALE WAS ALSO SENDING HER NUDE PICS OF HIMSELF ... CALL PINGED THE 21 OF THE MALE ON SUNDAY AND IT HIT IN WESTMINSTER CALI AND TODAY ITS HITTING NEAR THE 20 IN ALBUQ FEMALE IS 16 YRS OLD 5'5 100 LBS BLUE/BLONDE Bernalillo County Sheriffs Department Computer Aided Dispatch Report at 1 (dated November 9, 2009)(Government’s Exhibit H)(“CAD Report”). 40. In McCarthy’s initial call to the BCSO, she did not mention anything about KY.’s mental health. See Aug. 3, 2011 Tr. at 54:1-5 (Kastrin, McCarthy). 41. She called the BCSO back approximately an hour later and told them about K.Y.’s mental health issues- — that she was depressed, had attempted suicide in the past, and was off her medications. See Aug. 3, 2011 Tr. at 54:14-21 (Kastrin, McCarthy). See also CAD Report at 2 (stating that, at “19[:]49 THE DET FROM CALI CALLED ADV THE SUBJ IS SUICIDAL, OFF MEDS & DEPRESSED”). 2. Littlefield. 42. On November 9, 2009, following McCarthy’s first call to the BCSO, BCSO Deputy Littlefield was dispatched to Christy’s residence at 2265 Kelly Road, S.W. to perform a welfare check in reference to a run away from California. See Aug. 3, 2011 Tr. at 69:21-70:3 (Kastrin, Littlefield). 43. Littlefield had information that the run away was a sixteen-year-old female who left California, possibly in Christy’s company. See Aug. 3, 2011 Tr. at 70:4-11 (Kastrin, Littlefield). 44. Littlefield believed that, before he “ever stepped foot on” Christy’s property, he had probable cause to believe that Christy committed the New Mexico state crimes of kidnaping, custodial interference, contributing to the delinquency of a minor, and sexual exploitation of a minor. Aug. 3, 2011 Tr. at 70:12-72:10 (Kastrin, Little-field). 45. Littlefield believed he had probable cause for the New Mexico crime of kidnaping, because K.Y. left her home, because, as far as Littlefield knew, there was no note saying where she had gone, because, although K.Y. had been in contact with Christy, there was nothing indicating whether she left of her own free will, and because Christy brought K.Y. across state lines and K.Y. had been missing for two days. See Aug. 3, 2011 Tr. at 70:18-71:9 (Kastrin, Littlefield). 46. Littlefield believed that he had probable cause for the New Mexico crime of custodial interference, because Christy took K.Y. across state lines, because Littlefield did not have any reason to believe that K.Y.’s parents had consented to her leaving, and because there was nothing in the dispatch that said KY.’s parents consented to her leaving the state. See Aug. 3, 2011 Tr. at 71:13-19 (Kastrin, Little-field). 47. Littlefield believed that he had probable cause for the New Mexico crime of contributing to the delinquency of a minor, because Christy had, either with KY.’s consent or through enticement, brought K.Y. across state lines apparently against the wishes of her parents. See Aug. 3, 2011 Tr. at 71:20-72:3 (Kastrin, Littlefield). 48. Littlefield believed that he had probable cause for the New Mexico crime of sexual exploitation of a minor, because he believed, based on his training and experience, that there was a possibility child pornography could be involved, given the electronic mail transmission communications between K.Y. and Christy, and the nude pictures that Christy sent K.Y. See Aug. 3, 2011 Tr. at 72:9-16 (Kastrin, Little-field). 49. Littlefield knew that Christy and K.Y. had communicated through electronic mail transmissions and that Christy had sent K.Y. nude photographs, but, as far as he knew, there was not any simulated sexual act in the nude pictures or any actual sexual act. See Aug. 3, 2011 Tr. at 78:1-6 (McMillian, Littlefield). 50. Littlefield shared the information that Christy possibly transported a runaway sixteen-year-old female — K.Y.—from California to New Mexico with Detective Weylin Proctor from the BCSO so that Proctor could get a search warrant. See Aug. 3, 2011 Tr. at 72:21-24 (Kastrin, Littlefield) 51. Littlefield wanted to search Christy’s vehicle, Christy’s residence, Christy’s and K.Y.’s cellular telephones, Christy’s computers, and any memory or data storage devices, cameras, or similar items. See Aug. 3, 2011 Tr. at 72:25-73:7 (Kastrin, Littlefield). 52. When Littlefield arrived at Christy’s residence, he walked down the driveway, because it appeared to him that the residence’s rear entrance was the main entrance or the entrance that was used most, because the leaves were disturbed going down the driveway, and the front porch was dark and did not look used. See Transcript of Hearing at 18:4-12 (taken April 21, 2011)(Kastrin, Littlefield). 53. The rear entrance is not visible from the front of the residence; the disturbance of the leaves in the driveway is consistent with disturbance from the tires of a car — there are two tracks where the leaves are disturbed. See Government’s Exhibit J. 54. From the Court’s independent review of the photographs, the Court does not agree that the front door did not look like the door people used. Littlefield could not see the back porch, so he could not have reasonably made a comparison before he went to the back porch. The back porch is messy and looks like a back porch; the front porch looks neat and inviting. See Government’s Exhibit I; Government’s Exhibit M; Government’s Exhibit N. 55. After Littlefield looked in Christy’s window, he believed that he had probable cause that Christy had committed production of child pornography, because he saw a flash that was consistent with a camera flash, because he saw K.Y. in various states of undress, and because it looked like K.Y. was staged. See Aug. 3, 2011 Tr. at 73:12-74:4 (Kastrin, Littlefield). 56. When Littlefield looked in the window, he did not see a camera and could not, physically, have seen the computer on Christy’s desk. See Aug. 3, 2011 Tr. at 78:7-12 (McMillian, Littlefield). 57. Littlefield later shared what he saw when he looked into the window with Proctor to make sure that, when Proctor obtained search warrants, he would include all devices, such as cameras, computers, flash drives, media storage devices, and cellular telephone cameras, which could be used for the production and distribution of child pornography. See Aug. 3, 2011 Tr. at 74:9-17 (Kastrin, Littlefield). 58. Littlefield has concluded that, had he not forced entry into Christy’s residence when he did, he would have entered the residence at a later time, because BCSO was later given information that K.Y. was considered suicidal, off her medication, and a danger to herself. See Aug. 3, 2011 Tr. at 74:21-75:3 (Kastrin, Little-field). 59. BCSO deputies learned this information approximately an hour after they forced entry into Christy’s residence. See Aug. 3, 2011 Tr. at 76:13-18 (Kastrin, Littlefield). 3. Mary Adkins. 60. Adkins, a Special Agent with the FBI, is currently assigned to work cases involving online exploitation of children. See Aug. 3, 2011 Tr. at 5:14-22 (Rees, Adkins). 61. Adkins is affiliated with a statewide task force relating to internet crimes against children. See Aug. 3, 2011 Tr. at 7:19-8:5 (Rees, Adkins). 62. In the course of her duties as an FBI agent who is assigned to investigate child exploitation cases, Adkins writes search warrants for premises that may contain evidence of a child exploitation crime. See Aug. 3, 2011 Tr. at 6:10-14 (Rees, Adkins). 63. When the FBI works jointly with a state agency, investigative decisions are made jointly through communications with both agencies and, at times, attorneys. See Aug. 3, 2011 Tr. at 11:1^4 (Rees, Adkins). 64. On the evening of November 9, 2009, sometime between six and seven, a task force member called Adkins to Christy’s residence to assist the BCSO. See Aug. 3, 2011 Tr. at 7:17-23 (Rees, Adkins). 65. The task force member contacted Adkins, because there was a possibility a federal crime occurred, given that Christy and K.Y. had crossed over state lines; Adkins arrived on the scene to work with Proctor to determine what kind of crimes had occurred, whether the search warrant should be state or federal, and how best to proceed. See Aug. 3, 2011 Tr. at 8:1-9 (Rees, Adkins). 66. Before Adkins got to Christy’s residence, she knew that an individual had traveled to California, picked up a minor, and brought her back to New Mexico. See Aug. 3, 2011 Tr. at 22:16-20 (McMillian, Adkins). 67. Adkins “knew that there was not parental permission when [she] was on [her] way over there, or there wouldn’t have been a call to [BCSO] to begin with.” Aug. 3, 2011 Tr. at 26:24-27:1 (Adkins). 68. Adkins did not know the circumstances of the transportation when she arrived on the scene. See Aug. 3, 2011 Tr. at 25:13-18 (McMillian, Adkins). 69. After she arrived on scene at Christy’s residence, Adkins learned, mostly through Proctor and other BCSO deputies, that Christy had traveled to California and picked up K.Y., then brought her back to his residence in New Mexico. See Aug. 3, 2011 Tr. at 9:3-7 (Adkins). 70. BCSO deputies informed Adkins that K.Y. was removed from her place of residence without her parents’ consent; Carvo also later told Adkins this information. See Aug. 3, 2011 Tr. at 9:22-25 (McMillian, Adkins). 71. On the scene, and later during her interview with K.Y., Adkins learned that Christy and K.Y. had communicated over the internet and that the communications were sexual in nature. See Aug. 3, 2011 Tr. at 10:1-9 (McMillian, Adkins). 72. Adkins found out about the photographs that Christy and K.Y. sent each other during her interview of K.Y., when K.Y. described some of the photographs she sent to Christy; Adkins did not see the pictures that night. See Aug. 3, 2011 Tr. at 27:20-29:1 (McMillian, Adkins). 73. Adkins knew that Littlefield had looked through a window in Christy’s residence, and that he had seen what appeared to be camera flashes and K.Y. in various stages of undress. See Aug. 3, 2011 Tr. at 9:1-11 (Rees, Adkins). 74. That evening, Proctor and Adkins had a discussion about obtaining a search warrant; Adkins made a telephone call to the FBI’s evidence response team to determine whether they were available to execute a search warrant. See Aug. 3, 2011 Tr. at 11:7-11 (Adkins). 75. The FBI’s evidence response team was not immediately available. See Aug. 3, 2011 Tr. at 12:6-16 (Rees, Adkins) 76. In Adkins’ experience, if both the FBI and a state agency have probable cause for crimes, both agencies do not obtain a search warrant. See Aug. 3, 2011 Tr. at 11:12-19 (Rees, Adkins). 77. Adkins was prepared to acquire a federal search warrant that evening. See Aug. 3, 2011 Tr. at 12:3-5 (Rees, Adkins). 78. Because the FBI’s evidence response team was not available until the following day, a decision was made that Proctor would obtain the search warrant, because it was believed a state agency could get the warrants quicker. See Aug. 3, 2011 Tr. at 12:22-13:10 (Rees, Adkins). 79. If Adkins had written the federal search warrant, she would have contacted Carvo or Fletes to obtain information about their investigation, and she would have contacted the BCSO deputies to obtain information about what occurred on the scene. See Aug. 3, 2011 Tr. at 13:11— 20 (Rees, Adkins). 80. Adkins would have incorporated this information into her affidavit for a search warrant. See Aug. 3, 2011 Tr. at 13:21-24 (Rees, Adkins). 81. Adkins did not do an “independent investigation of the circumstances, other than what [she] got from BCSO and Westminster PD.” Aug. 3, 2011 Tr. at 34:14-17 (McMillian, Adkins). 82. All the “information [Adkins] had that evening, that [she] [would] ha[ve][ ]used to get a search warrant came from either the task force member, BCSO, Westminster PD, [the investigations that Westminster PD did,] or [her] interview with [K.Y.]” Aug. 3, 2011 Tr. at 36:11-17 (McMillian, Adkins). 83. Adkins did not ever write a warrant application. See Aug. 3, 2011 Tr. at 31:11-13 (McMillian, Adkins). 84. Adkins believes that an Assistant United States Attorney would have approved a federal search warrant. See Aug. 3, 2011 Tr. at 13:25-14:3 (Rees, Adkins). 85. Adkins has obtained other federal search warrants in this district, and she has never had an issue with a federal judge not issuing a search warrant in similar cases. See Aug. 3, 2011 Tr. at 14:4-11 (Rees, Adkins). See also Transcript of Hearing at 56:23-57:2 (taken July 8, 2011)(Court, Rees)(“THE COURT: ... [S]o the only thing we’d be talking about here for purpose of a Rule 41 search warrant would be one of the United States magistrate judges here? MS. REES: Right. I never had an issue with not being able to [obtain a warrant.]”). 86. If the BCSO had not acquired a search warrant that night, Adkins would have acquired a search warrant. See Aug. 3, 2011 Tr. at 14:12-15 (Rees, Adkins). 87. Adkins believed that she had probable cause, “based upon the evidence [she] learned that particular evening,” for “a search warrant for [the federal crimes of] production of child pornography, possession of child pornography, kidnapping, and ... traveler or the enticement statute.” Aug. 3, 2011 Tr. at 14:18-24 (Rees, Adkins). 88. A person under the age of eighteen cannot consent to the production or possession of child pornography. See Aug. 3, 2011 Tr. at 39:6-13 (Rees, Adkins). 89. That the minor may have consented does not negate Adkins’ probable cause for child pornography crimes or enticement or coercion crimes. See Aug. 3, 2011 Tr. at 40:4-8 (Rees, Adkins). 90. Adkins believes that she would have had probable cause for the federal crimes of production and possession of child pornography, based on Littlefield’s “approach and view through the window,” and the later “statements made by the victim,” from whom Adkins learned that she sent explicit pictures of herself. Aug. 3, 2011 Tr. at 15:1-11 (Rees, Adkins). 91. Littlefield told Adkins that he looked through the window of Christy’s residence and saw a young girl in what appeared to be some type of bondage apparatus, that the young girl was nude, and that he had seen flashes which could have come from a camera. See Aug. 3, 2011 Tr. at 31:19-32:3 (McMillian, Littlefield). 92. Adkins believes that, based on her experience, there is a possibility that a person who may be producing child pornography may also collect it. See Aug. 3, 2011 Tr. at 32:9-12 (Adkins). 93. Adkins believes that, “in theory,” if she spoke to the Westminster Police Department, she would have acquired information that the victim sent explicit images of herself that were consistent with child pornography. Aug. 3, 2011 Tr. at 15:8-19 (Rees, Adkins). 94. Based upon her training and experience with the crimes of production and possession of child pornography, Adkins would have searched Christy’s residence and Christy’s vehicle; her search warrant for the residence and vehicle would have encompassed any computers, cellular telephones, and devices that could be used to hold digital media. See Aug. 3, 2011 Tr. at 15:20-16:7 (Rees, Adkins). 95. Adkins believes that she would have had probable cause for the federal crime of kidnaping, because she was aware of evidence that Christy took K.Y. from her residence in California without her parents’ permission. See Aug. 3, 2011 Tr. at 16:13-20 (Rees, Adkins). 96. Adkins received information that K.Y. was removed from her residence without her parents’ permission on the scene from Proctor, from the task force member who initially contacted her, and from K.Y. during K.Y.’s interview. See Aug. 3, 2011 Tr. at 33:12-22 (McMillian, Adkins). 97. With a search warrant based on probable cause for kidnaping, Adkins would have been looking for K.Y.’s belongings, receipts related to travel, and other related items in Christy’s vehicle and Christy’s residence. See Tr. at 16:18-17:6 (Rees, Adkins). 98. Adkins believed that she had probable cause to write a search warrant for the federal crime of enticement or coercion, because she was aware of evidence that K.Y. and Christy used the internet and cellular telephones to communicate, and that Christy traveled across state lines to meet K.Y. and to transport her to Albuquerque. See Aug. 3, 2011 Tr. at 17:7-16 (Rees, Adkins). 99. Proctor told Adkins that K.Y. and Christy had communicated over the internet, and she also gained the same information later from Westminster investigators and from K.Y. See Aug. 3, 2011 Tr. at 33:1-8 (McMillian, Adkins). 100. A search warrant based upon probable cause for enticement or coercion would have encompassed Christy’s residence, Christy’s vehicle, Christy’s cellular telephone, and Christy’s computers. See Aug. 3, 2011 Tr. at 17:17-3 (Rees, Adkins). 101. Presuming Adkins “g[o]t a search warrant and [went] inside [Christy’s] residence and [found] things like used condoms,” Adkins “would have — If [she] had not done it previously, [she] would have stopped and requested a supplemental [search warrant]. But [she] would have requested in the search warrant items of a sexual nature, items that can be used: Sheets, bed sheets, condoms, et cetera.... Anything that could obtain DNA evidence,” because the items would have been evidence of the crime. Aug. 3, 2011 Tr. at 18:17 (Rees, Adkins). 102. The DNA evidence would have included DNA evidence from Christy. See Aug. 3, 2011 Tr. at 18:16-17 (Rees, Adkins). 103. The BCSO’s search warrant “sufficiently cover[ed] the evidence [she] would have sought to obtain in a federal search warrant.” Aug. 3, 2011 Tr. at 18:20-24 (Rees, Adkins). 104. Adkins believed that there was no need for her to obtain a supplemental federal search warrant. See Aug. 3, 2011 Tr. at 18:25-19:2 (Rees, Adkins). 105. Adkins believes that, if the BCSO deputies had not looked through the window and seen the circumstances involving the missing juvenile, she still would have had probable cause for federal crimes so as to obtain a federal search warrant. See Aug. 3, 2011 Tr. at 19:3-8 (Rees, Adkins). 106. Adkins believes that these crimes would be the “traveler enticement [and] kidnapping.” Aug. 3, 2011 Tr. at 19:9-11 (Rees, Adkins). 107. Adkins believes she would have had probable cause for these crimes based upon evidence that Christy had traveled to California, picked up K.Y., and brought her across state lines without her parents’ permission, and based upon evidence that K.Y. and Christy were communicating through the internet and cellular telephones. See Aug. 3, 2011 Tr. at 20:17-21:24 (Rees, Adkins). 108. With search warrants based on these crimes, Adkins would have sought to search Christy’s vehicle and residence; she would have sought to seize computer-related material, any devices that could hold or store computer-related material and digital images, cellular telephones, and receipts for travel and communications. See Aug. 3, 2011 Tr. at 19:12-22 (Rees, Adkins). 109. If Adkins had found evidence of sexual activity in the residence, she would have obtained a supplemental search warrant for items of a sexual nature that could contain DNA evidence, including from Christy’s person. See Aug. 3, 2011 Tr. at 19:23-20:6 (Rees, Adkins). 110. If BCSO had not looked through the window, and had not obtained a search warrant, Adkins is “absolutely certain” she would have applied for a search warrant the next day. Aug. 3, 2011 Tr. at 20:7-14 (Rees, Adkins). 4. Carvo. 111. Carvo is a member of a FBI task force that is comprised of state and local investigators who investigate internet crimes against children. See Aug. 3, 2011 Tr. at 87:5-88:1 (Rees, Carvo). 112. In this assignment, Carvo is cross designated to acquire both state and federal search warrants. See Aug. 3, 2011 Tr. at 88:2-4 (Rees, Carvo). 113. If a federal crime occurs in California, but the evidence exists elsewhere, Carvo can write a federal search warrant to acquire that evidence. See Aug. 3, 2011 Tr. at 88:9-12 (Rees, Carvo). 114. Based upon his investigation, training, and experience, Carvo believed that he had probable cause to acquire search warrants for Christy’s vehicle, cellular telephones, residence, and other matters. See Aug. 3, 2011 Tr. at 88:13-18 (Rees, Carvo). a. California Crimes. 115. Carvo believed he had probable cause for the California crimes of: (i) child abduction- — California Penal Code §§ 278 and 278.5; (ii) illegal contact with a minor — California Penal Code § 288.3; (iii) showing or sending harmful matter to a minor — California Penal Code § 288.2; (iv) arranging a meeting with a minor for sexual purposes — California Penal Code § 288.4; (v) attending a meeting with a minor for sexual purposes or for a lewd act — California Penal Code § 288.4b; (vi) annoying or molesting a child — California Penal Code § 647.6; (vii) unlawful sexual intercourse — California Penal Code § 261.5; (viii) possession of child pornography — California Penal Code § 311.11; (ix) production of child pornography — California Penal Code § 311.4; and (x) unlawful oral copulation with a minor — California Penal Code § 288A. See Aug. 3, 2011 Tr. at 88:21-89:21 (Rees, Carvo). 116. The age of consent in California is eighteen years. See Aug. 3, 2011 Tr. at 88:19-20 (Rees, Carvo). See also People v. Soto, 51 Cal.4th 229, 119 Cal.Rptr.3d 775, 245 P.3d 410, 422 n. 11 (Cal.2011)(“The Legislature later raised the age of consent from 14 to 18 .... ” (citing Stats. 1897, ch. 139, § 1, p. 201; Stats. 1913, ch. 122, § 1, p. 212)). 117. Carvo believes he had probable cause for these California crimes as soon as he started the investigation and learned of the contact over electronic mail transmissions between Christy and K.Y., the pictures that the two exchanged, the age difference, and that Christy had met K.Y. in California and taken her to New Mexico. See Aug. 3, 2011 Tr. at 88:23-90:7 (Rees, Carvo). i. Child abduction. 118. The California crime of child abduction encompasses a defendant who maliciously takes or entices away a child under the age of eighteen when the defendant did not have rights to custody of that child, and when the defendant intended to detain or conceal the child from the child’s lawful custodian; the defendant may be guilty of this crime even if the child consented to the taking. See Aug. 3, 2011 Tr. at 90:10-19 (Rees, Carvo). See also Cal.Penal Code § 277 (“ ‘Child’ means a person under the age of 18 years.”); Cal.Penal Code § 278 (“Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished....”). 119. Carvo believed that he had probable cause for this crime, because Christy had been in contact with K.Y. through electronic mail transmissions, because K.Y. was under the age of eighteen, because the cellular telephone evidence and the evidence from the cellular telephone towers showed that Christy traveled from New Mexico to Westminster at the time that K.Y. disappeared and then traveled back to New Mexico, and because K.Y.’s parents did not consent to her leaving the state with Christy. See Aug. 3, 2011 Tr. at 90:22-91:6 (Rees, Carvo). 120. The California crime of child abduction by depriving a lawful custodian of a right to custody or visitation encompasses a defendant who takes or entices away a child who is under the age of eighteen when the defendant acted maliciously to deprive the right to custody of a lawful custodian. See Aug. 3, 2011 Tr. at 91:11— 22 (Rees, Carvo). See also Cal.Penal Code § 277; CaLPenal Code § 278.5 (“Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished.... ”). 121. Maliciously is defined as when the defendant intentionally does a wrongful act or when he or she acts with the unlawful intent to distribute defraud, annoy, or injure someone else. See Aug. 3, 2011 Tr. at 91:21-92:1 (Carvo). See also People v. Neidinger, 40 Cal.4th 67, 51 Cal.Rptr.3d 45, 146 P.3d 502, 509-10 (2006)(“The current section 278.5 requires that the person act ‘maliciously.’ Section 7, subdivision 4, states that this word ‘import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act....’”). 122. It is not a defense to the charge of the California crime of child abduction that the minor consented to go with the defendant. See Aug. 3, 2011 Tr. at 92:2-5 (Rees, Carvo). See also People v. Grever, 211 Cal.App.3d Supp. 1, 259 Cal.Rptr. 469, 472 (1989)(“Just as with child stealing, the crime is committed against the parent, not the child; thus, the child’s consent is irrelevant.”). 123. Carvo believed that he had probable cause for the California crime of child abduction, because Christy and K.Y. had contact through electronic mail transmissions, because K.Y. was under eighteen, and because the cellular telephone evidence showed Christy traveling to Westminster, picking up K.Y., and driving her back to California. See Aug. 3, 2011 Tr. at 92:6-12 (Rees, Carvo). ii. Sending harmful material. 124. The crime of sending harmful material to seduce a minor encompasses a defendant who shows or sends harmful material to a minor through electronic mail transmissions or the internet, when the defendant either knew that the person was a minor or failed to use reasonable care to determine the age of the minor, and when the defendant acted to sexually arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the minor, and with the intent or for the purpose of seducing the minor. See Aug. 3, 2011 Tr. at 92:13-25 (Rees, Carvo). See also Cal.Penal Code § 288.2 (stating that “[e]very person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means,” harmful matter, if the person had “the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor,” is guilty of a “public offense”). 125. Material is considered harmful under this statute if it shows or describes sexual conduct in an obviously offensive way, an average person would conclude it lacks serious literary artistic, political, or scientific value for minors, and an average adult person applying contemporary state standards would find that the material appeals to prurient interests. See Aug. 3, 2011 Tr. at 93:1-8 (Carvo). See also CaLPenal Code § 313 (defining “[hjarmful matter” as “matter ... which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors”). 126. Carvo believes that the naked photographs that Christy sent to K.Y. constitute harmful material and that Christy intended to use the material to seduce K.Y., given Christy’s and KY.’s communications over electronic mail transmissions and that they met on a dating website. See Aug. 3, 2011 Tr. at 93:9-24 (Rees, Carvo). 127. Carvo testified that, in the pictures Christy sent the minor, there is not a sexual act depicted or suggested, but that his genitals are visible. See Aug. 3, 2011 Tr. at 111:2-12 (McMillian, Carvo). 128. K.Y. was not simulating or performing a sexual act in the any of the pictures she sent Christy. See Aug. 3, 2011 Tr. at 112:4-8 (McMillian, Carvo). 129. Carvo does not know the dates that either Christy or the juvenile sent the pictures, or when Christy first acquired knowledge of the juvenile’s age. See Aug. 3, 2011 Tr. at 112:9-113:1 (McMillian, Carvo). 130. To register on agematch.com and consensual.com, a person must be eighteen years old. See Aug. 3, 2011 Tr. at 113:2-7 (McMillian, Carvo). 131. During his investigation, Carvo was aware that K.Y. was sending photographs of herself to Christy, and, based on his review of the photographs, K.Y. appears to be fourteen or fifteen years of age; Carvo believes that it would be reasonable to deduce that a person who looked at the image would believe that the image is of a minor. See Aug. 3, 2011 Tr. at 93:25-94:13 (Rees, Carvo). 132. Carvo believed that he had probable cause to believe that Christy had committed the California crime of showing or sending harmful material to seduce a minor, because Christy and K.Y. met on a dating website, because K.Y. was under the age of eighteen, and because Christy sent her naked pictures of himself. See Aug. 3, 2011 Tr. at 94:14-20 (Rees, Carvo). iii. Contacting a minor with intent to commit certain felonies. 133. The California crime of contacting a minor with intent to commit certain felonies encompasses a defendant who contacts or attempts to contact a minor with the intent to commit a certain felony, which in this case, would be unlawful sex with a minor and unlawful oral copulation with a minor, when the defendant knew or reasonably should have known that the person was a minor. See Aug. 3, 2011 Tr. at 94:21-95:6 (Rees, Carvo). See also Cal.Penal Code § 288.3(a) (stating that “[e]very person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense” specified in the statute “involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense”). 134. Carvo believes that the pictures K.Y. sent suggest she was a minor. See Aug. 3, 2011 Tr. at 95:8-10 (Rees, Carvo). 135. Under this statute, contact or communication includes direct or indirect contact or communication, personally, through electronic mail, through the internet, or through the telephone. See Aug. 3, 2011 Tr. at 95:11-15 (Rees, Carvo). See also CaLPenal Code § 288.3(b) (defining “contacts or communicates with” as including “direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system”). 136. Based on his investigation, Carvo was aware that K.Y. and Christy communicated through the internet, through electronic mail transmissions, and through the telephone. See Aug. 3, 2011 Tr. at 95:16-21 (Rees, Carvo). 137. Carvo believed that he had probable cause for the felonies of unlawful sexual intercourse and oral copulation, because, based on his training and experience investigating similar crimes, when two people exchange naked pictures through electronic mail transmissions and then arrange in-person meeting, the purpose of that meeting is for sexual contact. See Aug. 3, 2011 Tr. at 95:22-96:13 (Rees, Carvo). iv. Arranging!attending meeting with a minor for lewd purposes. 138. The California crime of arranging a meeting with a minor for a lewd purpose encompasses a defendant who is motivated by an unnatural or abnormal sexual interest in children, arranging a meeting with a minor or a person that he or she believes to be a minor, when, at the meeting, the defendant intended to either expose his genitals or pubic area or to have the minor expose her genitals or pubic area or engage in lewd or lascivious behavior. See Aug. 3, 2011 Tr. at 96:17-97:2 (Rees, Carvo). See also Cal.Penal Code § 288.4(a) (stating that “[e]very person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor,” for purposes of “exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished”). 139. Lewd or lascivious behavior covers any touching of a person with the intent to sexually arouse the person or the other person. See Aug. 3, 2011 Tr. at 97:3-12 (Rees, Carvo). See People v. Carpenter, 137 Cal.App.2d 792, 291 P.2d 189, 190 (1955)(“[H]e evolved the theory that ... there was a distinction between the ‘private parts’ of the little girl and the ‘sexual parts’____ The argument is specious since section 288 relates to acts committed upon any part of the body of the child.”). 140. Carvo believed that he had probable cause for this crime, because, based on his training and experience in investigating similar crimes, when an adult and minor exchange nude photographs with each other and then arrange a meeting in real life, it is likely that the meeting is to enable sexual contact between the two. See Aug. 3, 2011 Tr. at 97:13-20 (Rees, Carvo). 141. The California crime of attending a meeting with a minor for lewd purposes encompasses a situation where a person arranges a meeting with a minor or a person that they believe to be a minor, when the person was motivated to arrange the meeting by unnatural or abnormal sexual interest in children, when the person had a specific intent to expose his or her genitals or pubic or rectal area or have the child expose his or her genitals or pubic or rectal area, and when the person went to the arranged meeting place at or about the arranged time. See Aug. 3, 2011 Tr. at 98:10-21 (Rees, Carvo). See also Cal.Penal Code § 288.4(b) (“Every person described in paragraph (1) of subdivision (a) [ — arranging a meeting with a minor for lewd purposes — ] who goes to the arranged meeting place at or about the arranged time, shall be punished....”). 142. Carvo believed he had probable cause for this particular crime, because the information from the cellular telephone towers showed that Christy used his cell phone in the Westminster area on the morning K.Y. disappeared, and because, based on his training and experience in investigating similar crimes, when an adult and minor exchange nude photographs with each other and then arrange a meeting in real life, it is likely that the meeting is to enable sexual contact between the two. See Aug. 3, 2011 Tr. at 98:22-99:17 (Rees, Carvo). v. Annoying ¡molesting a child. 143. The California crime of annoying or molesting a child encompasses a case in which a defendant annoyed or molested a child under eighteen years of age and a defendant who, motivated by unnatural or abnormal sexual interest in child under eighteen years of age, engages in conduct which, if directed at a child, would violate this statute. See Aug. 3, 2011 Tr. at 99:18-100:2 (Rees, Carvo). See also Cal.Penal Code § 647.6(a) (“Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.”), CaLPenal Code § 647.6(b) (“Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years ..., which conduct, if directed toward a child ... would be a violation of this section, shall be punished .... ”). 144. A child does not need to be touched for a violation of this statute to occur. See Aug. 3, 2011 Tr. at 1003-5 (Rees, Carvo). See also United States v. Pallares-Galan, 359 F.3d 1088, 1101 (9th Cir.2004)(“[N]o actual contact need be shown in order to establish the crime of annoying or molesting a person under the age of 18.” (citations omitted)). 145. Carvo believed that he had probable cause for this crime, because Christy sent naked pictures to K.Y. See Aug. 3, 2011 Tr. at 100:9-12 (Rees, Carvo). vi.Unlawful sexual intercourse with a minor. 146. The California crime of unlawful sexual intercourse with a minor more than three years younger than the defendant encompasses defendants who have sexual intercourse with another person, when the defendant and the other person were not married to each other, and when, at the time of intercourse, the other person was under the age of eighteen and more than three years younger than the defendant. See Aug. 3, 2011 Tr. at 100:13-21 (Rees, Carvo). See also Cal.Penal Code § 261.5 (stating that “[ujnlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor,” that a minor “is a person under the age of 18 years,” and stating that “[a]ny person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished”). 147. It is not a defense that the minor may have consented to sexual intercourse; the age of consent in California is eighteen. See Aug. 3, 2011 Tr. at 100:22-101:1 (Rees, Carvo). See also Cal.Penal Code § 261.5; People v. Soto, 119 Cal.Rptr.3d 775, 245 P.3d at 422 n. 11. 148. Carvo believed that he had probable cause for this crime, because Christy and K.Y. exchanged naked pictures through electronic mail transmissions over the internet and then arranged a meeting in the middle of the night for K.Y. to run away with Christy. See Aug. 3, 2011 Tr. at 101:2-9 (Rees, Carvo). vii.Oral copulation. 149. The California crime of oral copulation with a person under the age of eighteen encompasses a defendant who participates in an act of oral copulation with another person who was under the age of eighteen when the act was committed. See Aug. 3, 2011 Tr. at 101:10-16 (Rees, Carvo). See also Cal.Penal Code § 288a (stating that “any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year”). 150. It is not a defense that the minor may have consented to the act. See Aug. 3, 2011 Tr. at 101:17-19 (Rees, Carvo). See also People v. Hillhouse, 109 Cal.App.4th 1612, 1 Cal.Rptr.3d 261, 267 (2003)(stating that the concept of consent is irrelevant to the determination whether the statute criminalizing oral copulation with a minor has been violated). 151. Carvo believed that he had probable cause for this crime, because, based on his interviews with child victims and subjects arrested for similar conduct, oral copulation occurs in almost every case between a child and an adult. See Aug. 3, 2011 Tr. at 101:20-102:4 (Rees, Carvo). viii.Child pornography. 152. The California crime of using a minor in creating pornography encompasses a person who, with knowledge that a person is a minor under eighteen years of age or while in possession of facts on the basis of which he or she should reasonably know that the person is a minor under eighteen years of age, knowingly promotes, employs, uses, persuades, induces, or coerces the minor to engage in or assist others to engage in, posing, or modeling for the purpose of preparing any picture, involving sexual conduct by the minor. See Aug. 3, 2011 Tr. at 102:10-23 (Rees, Carvo). See also CaLPenal Code § 311.4(c) (stating that “[e]very person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years,” who “knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years ... to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, ... or a live performance,” which involves “sexual conduct by a minor under the age of 18 years alone or with other persons or animals, is guilty of a felony”). 153. Carvo believed that he had probable cause for this crime, because, based on his training and experience, it is more likely than not Christy attempted to get K.Y. to take pictures of herself completely naked and it is more likely than not that Christy has engaged in this conduct with other minors and has asked other minors to take pictures of themselves naked. See Aug. 3, 2011 Tr. at 102:24-103:11 (Rees, Carvo). 154. The California crime of possession of child pornography encompasses possession of any image, whether it is a picture or a video, of a minor under the age of eighteen engaged in sexual conduct. See Aug. 3, 2011 Tr. at 103:21-104:4 (Rees, Carvo). See also CaLPenal Code § 311.11 (“Every person who knowingly possesses or controls any matter ... the production of which involves ... use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ... is guilty of a felony....”). 155. Carvo believed that he had probable cause for this crime, because, based on his training and experience, when a defendant sends naked pictures of himself to a minor and then solicits similar pictures from the minor, it is more likely than not the defendant will possess child pornography in his home in his computer. See Aug. 3, 2011 Tr. at 104:5-15 (Rees, Carvo). 156. Based on his belief that he had probable cause for these crimes, Carvo would have sought to search Christy’s vehicle, his cellular telephone, his residence, his computers, any digital media that could store pictures, evidence of contact between Christy and K.Y., evidence that K.Y. was in Christy’s residence, and DNA evidence from Christy and K.Y. See Aug. 3, 2011 Tr. at 104:21-105:10 (Rees, Carvo). b. Federal Crimes. 157. Carvo also believed that he had probable cause for the federal crimes of production of child pornography, 18 U.S.C. § 2251, possession of child pornography, 18 U.S.C. § 2252; coercion or enticement of a minor 18 U.S.C. § 2422 and transportation of a minor for sexual purposes 18 U.S.C. § 2423. See Aug. 3, 2011 Tr. at 106:4-11 (Rees, Carvo). 158. Carvo believed that he had probable cause for the federal crime of production and/or possession of child pornography, because K.Y. sent Christy an image of her bare breasts, which, although by itself is not child pornography, based on Carvo’s training and experience, when an adult man sends naked pictures of himself and solicits naked pictures of a minor, and then arranges a meeting in the middle of the night with the minor, it is more likely than not that he has asked for additional pictures of her, that he will take pictures of her, and that he has solicited pictures from minors in previous incidents. See Aug. 3, 2011 Tr. at 106:12-25 (Rees, Carvo). 159. Carvo believed that he had probable cause for the federal crime of enticement or coercion, because of Christy’s and KY.’s communications through the internet and electronic mail transmissions, because Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., and because cellular telephone evidence shows that Christy traveled across state lines to bring K.Y. to New Mexico. See Aug. 3, 2011 Tr. at 107:12-21(Rees, Carvo). 160. Carvo believed that he had probable cause for the crime of transportation of a minor for sexual purposes, because, based on his training and experience in similar cases, given the pictures Christy and K.Y. exchanged, and given the cellular telephone evidence showing that Christy traveled to bring K.Y. to New Mexico, it is more likely than not that they engaged in sexual activity that would have been a violation of several felonies in the state of California. See Aug. 3, 2011 Tr. at 107:21-108:8 (Rees, Carvo). c. Obtaining Search Warrants. 161. Based upon Carvo’s belief that he had probable cause for both violations of California state law and violations of federal law, he would “have asked [BCSO] and/ or — either one — the FBI to obtain a search warrant for [Christy’s] Albuquerque residence, vehicle, computers, cell phones, things of that nature.” Aug. 3, 2011 Tr. at 109:6-13 (Rees, Carvo). 162. If the BCSO or Albuquerque FBI were not able to obtain a search warrant for these locations, Carvo would have written a federal search warrant himself and come to the District of New Mexico to seek the warrant with himself as the affiant. See Aug. 3, 2011 Tr. at 109:14-19 (Rees, Carvo). 163. Carvo would have sought a search warrant for Christy’s cellular telephone, Christy’s vehicle, Christy’s residence, Christy’s computer, any digital media that had the capability of storing pictures, any evidence of contact between Christy and K.Y., any evidence that K.Y. had been in Christy’s residence, and DNA evidence. See Aug. 3, 2011 Tr. at 107:14-108:3 (Rees, Carvo). 164. To acquire a search warrant for California crimes with evidence in New Mexico, Carvo could have written a search warrant affidavit, sent it to a detective in New Mexico, and had the New Mexico detective seek a search warrant incorporating the affidavit. See Aug. 3, 2011 Tr. at 105:11-18 (Rees, Carvo). 165. Carvo believed that he had probable cause based on his investigation, and not on any information he learned from the BCSO or the Albuquerque FBI. See Aug. 3, 2011 Tr. at 110:11-18 (Rees, Carvo). 5. Proctor. 166. Proctor wrote a supplemental report, finishing the report in December, 2009, or January, 2010, which stated that, after he gained confessions from Christy, Adkins contacted him and informed him that she was under the impression from the United States Attorney’s Office that there were insufficient criteria to pursue federal charges against Christy, and that it was decided that the BCSO would take custody of the investigation and that he would be the case agent. See Aug. 3, 2011 Tr. at 124:25-126:15 (McMi