Appeal from the District Court for Lancaster County: KAREN B. FLOWERS, Judge.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Constitutional Law: Search Warrants: Affidavits. A claim that an affidavit is insufficient to justify issuance of a search warrant is a Fourth Amendment claim.
2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
3. Search Warrants: Affidavits: Probable Cause. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the U.S. Supreme Court held that a search warrant may be invalidated if a defendant proves that the affiant officer knowingly and intentionally, or with reckless disregard for the truth, included in his
or her affidavit false or misleading statements which were necessary to establish probable cause. This rationale extends to omissions in warrant affidavits of material information.
4. Trial: Convictions: Appeal and Error. An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction.
5. Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
6. Statutes. Statutory language is to be given its plain and ordinary meaning.
7. Statutes: Criminal Law. The definition of an act forbidden by statute, but not defined by it, may be ascertained by reference to the common law.
8. Evidence: Proof. Actual possession is synonymous with physical possession. Constructive possession, however, may be proved by mere ownership, dominion, or control over contraband itself, coupled with the intent to exercise control over the same.
9. Criminal Law: Evidence: Words and Phrases. Under Neb.Rev.Stat. § 28-813.01 (Cum.Supp.2012), " possess" includes constructive possession.
10. Criminal Law: Evidence. A defendant cannot intentionally procure and subsequently dispose of a depiction of child sexually abusive material without having either actual or constructive possession.
[287 Neb. 501] I. SUMMARY
Matthew C. Schuller admitted to periodically searching for, downloading, viewing, and then deleting child pornography computer files. Despite his efforts to delete the files, a forensic examination revealed remnants on his hard drive. Following a bench trial, the district court found Schuller guilty of knowingly possessing child pornography. The issues are (1) whether the investigator's failure to explain in his affidavit that dynamic Internet Protocol (IP) addresses can change tainted the probable cause determination and (2) whether the evidence was sufficient to find that Schuller " knowingly possess[ed]" child pornography as stated in Neb.Rev.Stat. § 28-813.01(1) (Cum. Supp. 2012). We conclude that the investigator's omission did not affect the probable cause determination and that the State adduced sufficient evidence to support Schuller's conviction. We affirm.
In investigating child pornography crimes, law enforcement agencies use third-party databases to identify IP addresses associated with suspected child pornography files. An IP address is a unique number that an Internet service provider assigns to a computer or other device on the Internet. These [287 Neb. 502] databases identify IP addresses which have (through peer-to-peer file-sharing software) made available for download known or suspected child pornography files. Essentially, peer-to-peer file-sharing software connects many different computers across the Internet and allows them to share their files with other connected computers.
Law enforcement agencies then use specialized software to automatically browse for and download suspected child pornography files from those IP addresses. Once an IP address is confirmed to have child pornography files, law enforcement agencies subpoena the Internet service provider for the relevant subscriber information. That information generally includes a name and the subscriber's physical address, and then law enforcement agencies obtain a warrant, seize evidence, and make arrests.
Sgt. John Donahue, the lead investigator, followed that process. On July 16, 2011, Donahue used a program called E-Phex to browse IP addresses within his jurisdiction and connected to a computer with a specific IP address. E-Phex obtained a list of that computer's shared files (files available for download through the file-sharing software), which contained one suspected child pornography file. On July 22, Investigator Corey Weinmaster subpoenaed the Internet service provider and requested the subscriber information for that IP address for various times on July 17 and 19. On July 28, the Internet service provider sent the requested information, which identified an individual (presumably Schuller's father) as the account holder, with a specific physical address located on Blackstone Road in Lincoln, Nebraska. Further surveillance of that IP address revealed that an additional 13 suspected child pornography files were linked with that IP address between July 17 and September 21. Donahue downloaded four of those files and confirmed that they were child pornography.
On September 27, 2011, Donahue applied for and received a search warrant. In his affidavit in support of his request, Donahue set out the above facts. He also included other [287 Neb. 503] significant information regarding his training, the typical investigation process in these kinds of cases, the type of evidence he hoped to find, and the types of items he wished to seize. A county judge granted his request for a warrant.
2. POLICE EXECUTE SEARCH WARRANT
On September 30, 2011, Donahue executed the search warrant. During the search, officers located and seized three computers, including Schuller's laptop. Weinmaster seized the laptop, which at the time was running a disk-wiping program. A disk-wiping program overwrites data, ...