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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN T. FERRICK,
Appellant, Court of Appeals No. A-
9976
v. Trial Court No. 1SI-
06-051 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2240 September 18, 2009
Appeal from the Superior Court, First Judi
cial District, Sitka, Michael A. Thompson,
Judge.
Appearances: James W. McGowan, Sitka, for
the Appellant. W. H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
John T. Ferrick appeals his conviction for possession
of child pornography. He raises two main contentions.
First, Ferrick argues that the evidence against him was
gathered illegally. The primary evidence against Ferrick
consisted of some five dozen pornographic photographs found on a
computer hard drive. These photographs were seized pursuant to a
search warrant. Ferrick contends that this search warrant was
not supported by probable cause, and thus the photographs seized
pursuant to this warrant must be suppressed.
Ferricks second contention is that Alaskas child
pornography statute, | AS 11.61.127(a | ), is unconstitutionally overbroad. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002 | ), the United States Supreme Court held that the provisions of the federal child pornography statute outlawing virtual child pornography (i.e., computer-generated pornographic images of simulated children | ) contravened the First Amendments protection of speech, since these provisions did not involve the exploitation of real children. 535 U.S. at 249-258, 122 S.Ct. at 1401-06. |
| According to Ferrick, the Alaska statute that prohibits the possession of child pornography suffers from the same constitutional flaw as the federal statute that was challenged in Free Speech Coalition. In other words, Ferrick contends that the Alaska statute punishes the possession of virtual child pornography in addition to punishing the possession of pornography that was actually produced with real children. | |||
| (In his brief, Ferrick phrases this attack on the statute as an assertion that the statute is unconstitutionally vague. However, Ferrick does not argue that people of common intelligence would be unable to understand the statute, or that they would be relegated to differing guesses about its meaning.1 Rather, Ferrick argues that the statute purports to criminalize conduct that is constitutionally protected. Thus, Ferrick is really claiming that the statute is overbroad. See Petersen v. State, 930 P.2d 414, 425 (Alaska App. 1996 | ). | ) | |
| For the reasons explained here, we conclude that the search warrant in Ferricks case was supported by probable cause, and thus the State lawfully obtained the pornographic photographs from the computer hard drive. We further conclude that Alaskas child pornography statute does not prohibit the possession of virtual child pornography, but rather is confined to the possession of pornography that was produced using real children. The statute therefore does not violate the First Amendment as construed in Free Speech Coalition. | |||
Underlying facts
In the early morning hours of June 22, 2005,
a security guard at Sheldon Jackson College in Sitka
came across several images of naked children on one of
the computers in the schools computer lab. The
security guard reported his discovery to Sterling
Barlow, the colleges computer technician. Barlow then
contacted Sitka Police Officer Roger Stevener.
Officer Stevener interviewed the security
guard and, based on the results of that interview,
Stevener applied for a warrant to search the computers
hard drive for evidence of the crime of possession of
child pornography. Based on Steveners testimony (which
was essentially a recapitulation of the security guards
report), Sitka Magistrate Bruce Horton issued the
requested search warrant.
Once the search warrant was issued, Stevener
traveled to the Sheldon Jackson campus, seized the
computer, and then brought it back to the police
station, where it was stored until it could be examined
by a police technician.
While Stevener was waiting for the computers
hard drive to be searched, Stevener interviewed
Ferrick about his connection to the computer. Ferrick
admitted that he had access to the computer, and he
also admitted that he had downloaded and stored several
pictures of under-age children in various sexual poses.
The search of the computer hard drive
revealed sixty-three photographs of naked or partially
dressed children (both male and female) in sexually
explicit poses.
The criminal statute at issue in this case
To evaluate Ferricks claims in this appeal,
we first must identify the elements of proof required
to establish the crime of possession of child
pornography codified in AS 11.61.127(a).
The definition of this crime hinges on the
definition of another crime: sexual exploitation of a
minor, AS 11.41.455(a). The sexual exploitation of a
minor statute prohibits the use of children under the
age of 18 to produce a live performance or an audio or
video or pictorial portrayal of any of the following
types of conduct: sexual penetration; the lewd
touching of a persons genitals, anus, or breast;
masturbation; bestiality; the lewd exhibition of a
childs genitals; or sexual sadism or masochism.
Returning to the definition of possession of
child pornography, AS 11.61.127(a) declares that a
person may not knowingly possess any material that
visually or aurally depicts any of the conduct
described in the sexual exploitation of a minor statute
if the person know[s] that the production of the
material involved the use of a child under 18 years of
age who engaged in the conduct.
Ferricks contention that the child pornography
possession statute is overbroad
Ferrick contends that AS 11.61.127(a) is
unconstitutionally overbroad for two reasons.
Ferrick first argues that this statute allows
the prosecution and conviction of people who do not, in
fact, possess prohibited child pornography. This
argument is based on the United States Supreme Courts
decision in Ashcroft v. Free Speech Coalition, 535 U.S.
234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).
In Free Speech Coalition, the Supreme Court
struck down portions of the federal child pornography
statute that placed limitations on virtual or computer-
generated pornography, as well as pornographic imagery
featuring adults who appear to be under-age. 535 U.S.
at 251-58, 122 S.Ct. at 1402-06. The Court held that,
because of First Amendment protections, Congress could
not punish this type of erotica, since it does not
involve the exploitation of real children. 535 U.S. at
249-251, 256; 122 S.Ct. at 1401-02, 1405.
According to Ferrick, the Supreme Courts
decision in Free Speech Coalition means that the
government can not prohibit the possession of
pornographic images depicting children unless the
government proves that the production of the
pornographic images involved the use of real children.
Ferrick acknowledges that AS 11.41.455(a)
(the statute prohibiting the sexual exploitation of
minors) explicitly requires proof that a child under
the age of 18 was used in the production of the live
performance or in the production of the audio, video,
or pictorial portrayal of sexual conduct or sexual
exhibition.
Ferrick also acknowledges that the child
pornography statute, AS 11.61.127(a), requires proof
that the defendant knowingly possessed pornographic
material depict[ing] conduct described in
AS 11.41.455(a), as well as proof that the defendant
[knew] that the production of the [pornographic]
material involved the use of a child under 18 years of
age.
Seemingly, then, AS 11.61.127(a) is fully
consistent with the ruling in Free Speech Coalition in
that the statute applies only to pornographic materials
that were produced using real children under the age of
18.
Ferrick argues, however, that there is a
constitutional flaw in the statute. He contends that
people can be prosecuted and convicted under
AS 11.61.127(a) if they merely think that they possess
pornography that was produced using real children, even
if the materials that they possess are really virtual
pornography.
Ferricks argument is based on AS
11.81.900(a)(2), the Alaska criminal codes definition
of the culpable mental state of knowingly. As defined
in this statute, the culpable mental state of knowingly
applies to two different elements of proof: (1) a
defendants conduct, and (2) the surrounding
circumstances that make the conduct criminal or that
justify the conduct.
With respect to this second element of proof
that is, when a criminal statute requires proof that a
person acted knowingly with respect to a circumstance
this culpable mental state is proved if the defendant
[was] aware ... [of] the circumstance [or] aware of a
substantial probability of its existence.
AS 11.81.900(a)(2). In other words, the government
need not prove that the defendant knew with certainty
that the circumstance existed; it is sufficient for the
government to prove that the defendant was aware of a
substantial probability that the circumstance existed.
Ferrick notes that there are times when a
person can be aware of a substantial probability that a
particular circumstance exists, even if the
circumstance does not actually exist. Because of this
possibility, Ferrick argues, a person could be
prosecuted and convicted of possessing child
pornography under AS 11.61.127(a) for merely being
aware of a substantial probability that the
pornographic materials in their possession were
produced using real children under the age of 18 even
if it turns out that the materials are virtual
pornography, or if it turns out that the subjects in
the pornographic materials were not under the age of
18.
Ferricks argument is based on a misreading of
AS 11.61.127(a).
It is true that AS 11.61.127(a) requires
proof that the defendant acted knowingly with respect
to the circumstance that the pornographic materials in
the defendants possession were produced us[ing] ... a
child under 18 years of age. And with respect to this
circumstance, it is sufficient for the government to
prove that the defendant was aware of a substantial
probability that this circumstance existed. See AS
11.81.900(a)(2).
But AS 11.61.127(a) also requires proof of an
actus reus proof of an underlying act of possession of
a certain type of pornographic materials.
Specifically, the statute requires proof that the
defendant possessed pornographic material depict[ing]
conduct described in AS 11.41.455(a) the statute
prohibiting the sexual exploitation of minors.
The conduct described in AS 11.41.455(a) is
the use of children under the age of 18 to create
pornography: induc[ing] or employ[ing] a child under
18 years of age to engage in one or more of the types
of sexual activity listed in the statute, or
(alternatively) photograph[ing], film[ing],
record[ing], or televis[ing] a child under 18 years of
age engaged in the listed types of sexual activity.
Reading these two statutes together, we
construe AS 11.61.127(a) to forbid the possession of
pornographic material that was generated by the conduct
prohibited by AS 11.41.455(a) in other words,
pornography that was generated by the use of a child
under the age of 18.
Under AS 11.61.127(a), the government must
prove that the defendant actually possessed pornography
that was generated by the conduct prohibited by
AS 11.41.455(a) that is, pornographic material that
was generated using a real child under the age of 18.
Additionally, the government must prove two culpable
mental states: first, that the defendant knew that
this child pornography was in their possession; and
second, that the defendant acted knowingly with respect
to the circumstance that the pornography was generated
using a child under the age of 18.
Our construction of AS 11.61.127(a) provides
the answer to Ferricks claim that the statute
unconstitutionally penalizes the possession of virtual
child pornography. The statute does not reach this
conduct and, therefore, the statute conforms to the
United States Supreme Courts ruling in Ashcroft v. Free
Speech Coalition.
A more detailed description of the search warrant
application, and our analysis of Ferricks contention
that this application failed to support the issuance of
the warrant
Ferricks remaining point on appeal is that
the evidence against him was obtained illegally that
the warrant authorizing the search of the computer hard
drive was not supported by probable cause.
The search warrant application in Ferricks
case was supported by the testimony of Officer
Stevener; this testimony, in turn, was based largely on
the information provided by the Sheldon Jackson
security guard.
As recited by Officer Stevener in his
testimony, the security guard was engaged in his
nightly duties when he bumped into a desk in the
computer lab. The computer sitting on this desk had
been left on, and this jostling activated the monitor.
On the screen, the security guard observed a
file labeled Lloyds. When the security guard opened
this file by clicking on it, he saw three images. One
image was of a naked young girl, between five and seven
years old, with her legs spread apart. This image bore
the title, Fill me up. The other two images were
pictures of naked young boys, four to seven years old,
depicting the boys penises.
Based on this information, the magistrate
issued a warrant authorizing the police to search the
hard drive of this computer for evidence of the crime
of possession of child pornography. This search led to
the discovery of sixty more photographs of children in
sexually explicit poses.
In this appeal, Ferrick contends that the
information presented to the magistrate was not
sufficient to support the issuance of the warrant
i.e., not sufficient to establish probable cause to
believe that the computer hard drive contained evidence
of the offense of possession of child pornography.
The State contends that the information
provided by the security guard was sufficient to
establish probable cause for the search sufficient to
establish reason to believe that the computers hard
drive contained evidence that someone knowingly
possessed images depicting the lewd exhibition of the
genitals of children under the age of 18.
Ferrick contends, however, that the
information provided by the security guard was not
sufficient to differentiate the three photographs on
the computer from works of unquestionable artistic and
socially redeeming significance works such as many of
the classic paintings and drawings used in ... art
curricula [in] high school and college.
We disagree. Although the security guards
description may not have been sufficiently detailed to
completely rule out the innocent explanation that
Ferrick proposes, the question is not whether the
security guards description constituted conclusive
proof of a crime. Rather, the question is whether the
guards description provided probable cause to believe
that the three images were evidence of a crime.
The test is whether the guards description
provided sufficient detail to warrant a reasonably
prudent person in believing that a crime had been, or
was being, committed.2 As our supreme court recently
clarified in State v. Koen, 152 P.3d 1148, 1152 (Alaska
2007), the concept of probable cause hinges on
probability rather than certainty, [and thus] a showing
of probable cause need not rule out other explanations
that are merely possible.
Here, the evidence presented to the
magistrate was that a particular folder on the computer
contained several images of naked young children.
These children were of approximately the same age, and
well under puberty. One of the images depicted a girl
with her legs spread (i.e., a pose that could
reasonably be interpreted as sexually suggestive), and
this image was labeled Fill me up (i.e., words that
could reasonably be interpreted as sexually
suggestive). The other two images were pictures of
naked boys with their penises displayed.
When we consider this information as a whole
the visual content of the three images, the fact that
they were grouped together in a computer folder, and
the fact that one of them bore a sexually suggestive
label we conclude that the search warrant application
provided probable cause to believe that the images were
evidence of someones knowing possession of child
pornography.
Ferrick also argues that the search warrant
application did not dispel the possibility that the
images observed by the security guard were merely
drawings of children, or computer-generated graphics,
rather than photographs of real children. He points
out that, in the search warrant application, the
photographs were described merely as images and
pictures, as opposed to photographs. Ferrick argues
that the search warrant application needed to contain a
direct assertion that the images on the computer were
photographs, or at least a recitation that the suspect
images appeared to be those of real children.
We reject this argument because, as we
explained earlier, the standard for issuing a search
warrant is probable cause, and the probable cause
standard does not require an affirmative negation of
all innocent explanations.
It is true that, because Officer Stevener
used the terms images and pictures, there was a
possibility that the security guard had observed
computer representations of oil paintings, or computer-
generated cartoons, rather than digital photographs.
But search warrants need not be supported by conclusive
proof of criminality. The question before the
magistrate was whether the testimony provided a
reasonable basis to believe that the computer hard
drive contained digital photographs of real children.
We conclude that when the information
presented to the magistrate is analyzed in context and
in a common-sense manner, that information was
sufficient to establish reasonable grounds to believe
that the images and pictures on the computer were in
fact photographs of minor children engaged in sexual
conduct described in AS 11.41.455(a).
For these reasons, we uphold the search
warrant in Ferricks case.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Petersen v. State, 930 P.2d 414, 424 (Alaska App. 1996),
quoting Schad v. Arizona, 501 U.S. 624, 632; 111 S.Ct. 2491,
2497; 115 L.Ed.2d 555 (1991).
2 Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990).
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