Hughes (Aaron) v. State

probability that contraband or evidence of [the] crime will be found in a particular place," Illinois v. Gates, 462 U.S. 213, 238 (1983). When reviewing a magistrate's probable cause determination, "[Wm reviewing court is not to conduct a de novo probable cause determination but instead is merely to decide whether the evidence viewed as a whole provided a substantial basis for the magistrate's finding." Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 67 (1994). When reviewing a district court's ultimate decision regarding a motion to suppress, this court reviews findings of fact for clear error, but the legal consequences of those facts de novo. State v. Beckman, 129 Nev. „ 305 P.3d 912, 916 (2013). We conclude that Hughes' argument lacks merit. The warrant and accompanying affidavit aver that a witness found a letter containing sexual and romantic language in Hughes' home. It appeared to be from Hughes' daughter to Hughes. The witness also provided several emails between Hughes and his daughter that contained language indicative of a romantic relationship. Similar language was found in emails between Hughes and his daughter on Hughes' computer at his former place of employment. These facts support the court's probable cause determination that further documents and emails proving this relationship might be found in Hughes' residence, see United States v. Terry, 522 F.3d 645, 648-49 (6th Cir. 2008) (it is reasonable to infer that a suspect used a computer in his home to send messages over the internet), as well as DNA evidence indicating a sexual relationship. However, the affidavit in support of the warrant does not set forth sufficient facts to conclude that there is a fair probability that Hughes' home contained incriminating photographs or videos. See Gates, 462 U.S. at 238. The evidence demonstrated a reasonable probability that

SUPREME COURT OF NEVADA 2 (0) 1947A

Hughes may be engaged in a sexual relationship with his daughter, but contained no evidence any relationship had been memorialized in a visual depiction. The affiant's opinion that "perpetrators of this type of crime often take photographs of their physical encounters with their victims," in and of itself, was insufficient to establish probable cause to search for photographs or videos. See Dougherty v. City of Covina, 654 F.3d 892, 897- 99 (9th Cir. 2011) (concluding that allegation of molestation and professional opinion of affiant is not sufficient to establish probable cause to search for child pornography). However, the precedent addressing whether an allegation of child molestation establishes probable cause to search for child pornography was ambiguous at the time the warrant was served in 2008. United States v. Needham, 718 F.3d 1190, 1195-96 (9th Cir. 2013). Therefore, we conclude that the officer's good faith reliance on the warrant was reasonable under the circumstances and does not support exclusion of the evidence. See United States v. Leon, 468 U.S. 897, 922 (1984) ("[A] warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has 'acted in good faith in conducting the search." (quoting United States v. Ross, 456 U.S. 798, 823 n.32 (1982))). Having considered Hughes' contention and concluded that it lacks merit, we ORDER the judgment of conviction AFFIRMED.

s r J. °• Parraguirre Saitta

SUPREME COURT OF NEVADA 3 (0) [947A

cc: Hon. Nancy L. Porter, District Judge Law Office of Tammy M. Riggs, PLLC Attorney General/Carson City Elko County District Attorney Elko County Clerk

SUPREME COURT OF NEVADA 4 (0) 1947A <61140