UNITED STATES of America, Plaintiff-Appellee, v. Micah J. GOURDE, Defendant-Appellant, 440 F.3d 1065

McKEOWN, Circuit Judge: The term “Lolita” conjures up images ranging from the literary depiction of the adolescent seduced by her stepfather in Vladimir Nabokov’s novel to erotic displays of young girls and child pornography. This case requires us to consider probable cause to search a computer for child pornography in the context of an Internet website, known as “Lolita-gurls.com,” that admittedly displayed child pornography. Micah Gourde appeals from the district court’s denial of his motion to suppress more than 100 images of child pornography seized from his home computer.

Gourde claims that the affidavit in support of the search lacked sufficient indi-cia of probable cause because it contained no evidence that Gourde actually downloaded or possessed child pornography. We disagree. Based on the totality of the circumstances, the magistrate judge who issued the warrant made a “practical, common-sense decision” that there was a “fair probability” that child pornography would be found on Gourde’s computer. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Fourth Amendment requires no more. BACKGROUND I.

THE AFFIDAVIT " In May 2002, the FBI requested a warrant to search the residence of Micah Gourde for the purpose of seizing computer equipment and other materials containing evidence that he “probably caused the uploading, downloading and transmission of child pornography over the Internet” in violation of 18 U.S.C. §§ 2252 and 2252A, which criminalize the possession, receipt and transmission of child pornography. The following facts come from Special Agent David Moriguchi’s affidavit in support of the search warrant. See United States v.

Anderson, 453 F.2d 174, 175 (9th Cir.1971) (“[A]ll data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.”). In August 2001, an undercover FBI agent discovered a website called “Lolita-gurls.com.” The first page of the site contained images of nude and partially-dressed girls, some prepubescent, along with this text: Lolitagurls.com offers hard to find pics! With weekly updates and high quality pix inside, you cant go wrong if you like young girls!

Lolitas.Full size High Quality Pictures inside Join Now — instant access here THIS SITE updated weekly WITH NEW LOLITA PICS This site is in full compliance with United States Code Title 18

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Section 2256. The first page directed the user to a second page with more images of nude girls, some prepubescent, including three images displaying the genital areas of minors, and a caption reading “Lolitas age 12-17.” The second page contained this text: Welcome to Lolitagurls. Over one thousand pictures of girls age 12-17! Naked lolita girls with weekly updates! What you will find here at Lolitagurls.com is a complete collection of young girl pics. BONUS: You can get movies/mpegs at our partners site after you join if you wish.

The second page also had testimonials from website members, such as “This lolita site has everything with young girls!” and “I’ve never seen in my life the pics of so cute pre-teen girls.” This page offered the viewer three ways to see other pages on the website: (1) take a free tour of the site, (2) become a new member of the site, or (3) log in as a returning member. As part of his investigation, the undercover agent joined the website and was a member from August to December 2001. The membership fee was $19.95 per month, deducted automatically from the member’s credit card.

Lancelot Security handled credit card processing and access control for Lolitagurls.com. Members received unlimited access to the website and were “allowed ... to download images directly from the website.” Browsing The entire website, whose “primary feature was the images section,” the undercover agent captured “hundreds of images” that “included adult pornography, child pornography, and child erotica.” These images included the lascivious display of the breasts and genitalia of girls under the age of eighteen.

The FBI eventually identified the owner and operator of Lolitagurls.com and, in January 2002, executed a search warrant. Among the seized items was his computer, which contained child pornography images that had been posted to the Lolita-gurls.com website. The owner “admitted ... that ‘Lolitagurls.com’ was a child pornography website he operated as a source of income.” In response to a follow-up subpoena, Lancelot Security provided the FBI with information on Lolitagurls.com’s subscribers.

Lancelot’s records listed Gourde as a member and provided his home address, date of birth, email address, and the fact that he had been a subscriber from November 2001 until January 2002. Gourde never cancelled his membership — the FBI shut down the site at the end of January, while he was still a member. The affidavit contained extensive background information on computers and the characteristics of child pornography collectors. One

section set out legal and computer terms relevant to understanding how downloading and possessing child pornography would violate 18 U.S.C. § 2252. Citing FBI computer experts, the affidavit explained that if a computer had ever received or downloaded illegal images, the images would remain on the computer for an extended period. That is, even if the user sent the images to “recycle” and then deleted the files in the recycling bin, the files were not actually erased but were kept in the computer’s “slack space” until randomly overwritten, making even deleted files retrievable by computer forensic experts.

Any evidence of a violation of 18 U.S.C. § 2252 would almost certainly remain on a computer long after the file had been viewed or downloaded and even after it had been deleted. The affidavit also described the use of computers for child pornography activities.

Based on his experience and that of other FBI experts, Moriguchi wrote that “[p]aid subscription websites are a forum through which persons with similar interests can view and download images in relative privacy.” He described how collectors and distributors of child pornography use the free email and online storage services of Internet portals such as Yahoo! and Hot-mail, among others, to operate anonymously because these websites require little identifying information.

Communications through these portals result in both the intentional and unintentional storage of digital information, and a “user’s Internet activities generally leave traces or ‘footprints’ in the web cache.... ” Drawing on the expertise of the FBI Behavioral Analysis Unit, the affidavit listed certain “traits and characteristics ... generally found to exist and be true in ... individuals who collect child pornography.” According to the affidavit, the majority of collectors are sexually attracted to children, “collect sexually explicit materials” including digital images for their own sexual gratification, also collect child erotica (images that are not themselves child pornography but still fuel their sexual fantasies involving children), “rarely, if ever, dispose of their sexually explicit materials,” and “seek out like-minded individuals, either in person or on the Internet.” The affidavit concluded by identifying facts about Gourde that made it fairly probable that he was a child pornography collector and maintained a collection of child pornography and related evidence:

(1) Gourde “took steps to affirmatively join” the website; (2) the website “advertised pictures of young girls”; (3) the website offered images of young girls engaged in sexually explicit conduct;

(4) Gourde remained a member for over two months, although he could have cancelled at any time;

(5) Gourde had access to hundreds of images, including historical postings to the website; and (6) any time Gourde visited the website, he had to have seen images of “naked prepubescent females with a caption that described them as twelve to seventeen-year-old girls.” II. PROCEDURAL BACKGROUND On the strength of Moriguchi’s affidavit, the magistrate judge issued a warrant to search Gourde’s residence and computers. The FBI searched Gourde’s house and seized his computer, which contained over 100 images of child pornography and erotica. Gourde filed a motion to suppress the images found on his computer.

At the suppression hearing, the district court heard testimony from two FBI agents, including Moriguchi. The district court restricted its ruling to “the face of the affidavit,” and denied Gourde’s motion to suppress. The district court determined that the recitations in the affidavit supported a fair probability that evidence of a crime would be found on Gourde’s computer.

The judge applied a “common sense approach” to conclude that evidence of a subscription to even a “mixed” site— one that offered both legal adult pornography and illegal child pornography — provided the necessary “fair probability” to “look further.” Shortly after, Gourde pleaded guilty to one count of possession of visual depictions of minors engaged in sexually explicit conduct in . violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2) and 2256. In the plea agreement, he admitted to having “hundreds” of such images on his computer.

Gourde conditioned his guilty plea on his right to appeal the district court’s denial of his motion to suppress. DISCUSSION Our starting point is the Fourth Amendment, which prohibits “unreasonable searches and seizures,” and its Warrants Clause, which requires that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” U.S. Const, amend. IV. The contours of probable cause were laid out by the Supreme Court in its 1983 landmark decision, Illinois v.

Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. In contrast to the more exacting, technical approach to probable cause in eases before Gates, see id. at 230, 103 S.Ct. 2317 n. 6, Gates itself marked a return to the “totality of the circumstances” test and emphasized that probable cause means “fan-probability,” not certainty or even a preponderance of the evidence. Id. at 246, 103 S.Ct. 2317.

In short, a magistrate judge is only required to answer the “commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place” before issuing a search warrant. Id. at 230, 103 S.Ct. 2317. The Supreme Court also used Gates as a vehicle to elaborate on our role as a reviewing court. We are not in a position to flyspeck the affidavit through de novo review. Id. at 236, 103 S.Ct. 2317 (“[Ajfter-the-fact scrutiny by courts of the sufficiency of the affidavit should not take the form of de novo review”).

Rather, the magistrate judge’s determination “should be paid great deference.” Id. (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). This deferential approach is the antithesis of a “grudging or negative attitude” toward search warrants and “a hypertechnical rather than a eommonsense” analysis. United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); accord United States v.

Seybold, 726 F.2d 502, 505 (9th Cir.1983) (holding that our limited scope to review simply means determining whether the magistrate had a substantial basis for concluding there was a fair probability that evidence would be found). We conclude that the affidavit contained sufficient facts to support the magistrate judge’s finding that there was a “fair probability” that Gourde’s computer contained evidence that he violated 18 U.S.C. §§ 2252 or 2252A. Turning first to the website itself, the evidence is unequivocal that Lolita-gurls.com was a child pornography site whose primary content was in the form of images.

Indeed, the owner admitted that it “was a child pornography website that he operated as a source of income.” The owner’s confession to the FBI established that Lolitagurls.com actually contained illegal content, the possession, receipt or transfer of which would be a violation of 18 U.S.C. § 2252. Thus, the magistrate judge had no reason to question whether the images described constituted child pornography because the owner himself acknowledged he purveyed illegal images.

This fact alone renders futile Gourde’s piecemeal attempts to chip away at the affidavit by identifying shortcomings in the description of images — i.e., that the FBI failed to describe images meeting the definition of child pornography, that the agent had no basis for determining how old the girls were, and that the website also contained legal content (i.e., adult pornography and child erotica). In the face of the owner’s admission that he was operating a child pornography website, the prophylactic disclaimer that “[t]his site is in full compliance with United States Code, Title 18

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Section 2256” is mere window dressing that absolves the owner or users of nothing. The affidavit then moves from one certainty, that child pornography was on the website, to another — that Gourde had access and wanted access to these illegal images. Gourde subscribed to Lolita-gurls.com for over two months, from November 2001 to January 2002. As a paying member, Gourde had unlimited access to hundreds of illegal images. He clearly had the means to receive and possess images in violation of 18 U.S.C. § 2252.

But more importantly, Gourde’s status as a member manifested his intention and desire to obtain illegal images. Membership is both a small step and a giant leap. To become a member requires what are at first glance little, easy steps. It was easy for Gourde to submit his home address, email address and credit card data, and he consented to have $19.95 deducted from his credit card every month. But these steps, however easy, only could have been intentional and were not insignificant. Gourde could not have become a member by accident or by a mere click of a button.

This reality is perhaps easier to see by comparing Gourde to other archetypical visitors to the site. Gourde was not an accidental browser, such as a student who came across the site after “Goo-gling” the term “Lolita” while researching the Internet for a term paper on Nabokov’s book. Nor was Gourde someone who took advantage of the free tour but, after viewing the site, balked at taking the active steps necessary to become a member and gain unlimited access to images of child pornography.

Gourde is different still from a person who actually mustered the money and nerve to become a member but, the next morning, suffered buyer’s remorse or a belated fear of prosecution and cancelled his subscription. Instead, Gourde became a member and never looked back — his membership ended because the FBI shut down the site. The affidavit left little doubt that Gourde had paid to obtain unlimited access to images of child pornography knowingly and willingly, and not involuntary, unwittingly, or even passively.

With evidence from Lancelot Security, the FBI linked the email user — “gilbert_95@yahoo.com,” a known subscriber to Lolitagurls.com — to Gourde and to his home address in Castle Rock, Washington. Having paid for multi-month access to a child pornography site, Gourde was also stuck with the near certainty that his computer would contain evidence of a crime had he received or downloaded images in violation of § 2252. Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images.

FBI computer experts, cited in the affidavit, stated that “even if ... graphic image files[] have been deleted ... these files can easily be restored.” In other words, his computer would contain at least the digital footprint of the images. It was unlikely that evidence of a crime would have been stale or missing, as less than four months had elapsed between the closing of the Lolitagurls.com website and the execution of the search warrant. See United States v.

Lacy, 119 F.3d 742, 746 (9th Cir.1997) (holding that the nature of the crime involving child pornography, as set forth in the affidavit, “provided ‘good reason[ ]’ to believe the computerized visual depictions downloaded by Lacy would be present in his apartment when the search was conducted ten months later”).

Given this triad of solid facts — the site had illegal images, Gourde intended to have and wanted access to these images, and these images were almost certainly retrievable from his computer if he had ever received or downloaded them — the only inference the magistrate judge needed to make to find probable cause was that there was a “fair probability” Gourde had, in fact, received or downloaded images. Gates supports the principle that a probable cause determination may be based in part on reasonable inferences.

See 462 U.S. at 240, 103 S.Ct. 2317 (noting that a magistrate judge may “draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant”). Here, the reasonable inference that Gourde had received or downloaded images easily meets the “fair probability” test. It neither strains logic nor defies common sense to conclude, based on the totality of these circumstances, that someone who paid for access for two months to a website that actually purveyed child pornography probably had viewed or downloaded such images onto his computer. See Gates, 462 U.S. at 246, 103 S.Ct. 2317.

Together these facts form the basis of the totality-of-the-circumstances analysis that informs the probable cause determination. Employing the principles of Gates — practicality, common sense, a fluid and nontechnical conception of probable cause, and deference to the magistrate’s determination — we conclude that the search warrant was supported by probable cause. Other circuits, facing nearly identical facts, have reached the same result for the same reason. See United States v.

Martin, 426 F.3d 68, 75 (2d Cir.2005) (“It is common sense that an individual who joins such a site would more than likely download and possess such material.”); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004) (“[I]t is common sense that a person who voluntarily joins a group such as Candyman, remains a member of the group for approximately a month without cancelling his subscription, and uses screen names that reflect his interest in child pornography, would download such pornography from the website and have it in his possession.”).

The details provided on the use of computers by child pornographers and the collector profile strengthen this inference and help “provide[ ] context” for the “fair probability” that Gourde received or downloaded images. See United States v. Hay, 231 F.3d 630, 636 (9th Cir.2000) (reasoning that the collector profile “form[ed] the basis upon which the magistrate judge could plausibly conclude that those files were still on the premises”).

The FBI agent concluded that Gourde fit the collector profile because he joined a paid subscription website dedicated to child pornography, where “persons with similar interests can view and download images in relative privacy.” Most collectors “are persons who have a sexual attraction to children,” and Gourde’s membership was a manifestation of that attraction. Collectors act like “pack rats” because they have difficulty obtaining images of child pornography.

As such, they are inclined to download and keep such images for a long period of time, and they “rarely, if ever, dispose of their sexually explicit materials.” This profile tracks the collector profiles that supported a finding of probable cause in other cases in this circuit and others. See, e.g., Lacy, 119 F.3d at 746 (“[T]he affiant explained that collectors and distributors of child pornography value their sexually explicit materials highly, ‘rarely if ever’ dispose of such material, and store it ‘for long periods’ in a secure place, typically in their homes.”); Martin, 426 F.3d at 75.

The Second Circuit’s recent decision in Martin is instructive. Martin stemmed from a widespread investigation of several pornographic websites — “Candyman,” “girlsl2-16,” and “shangri-la.” Id. at 70. Like the affidavit here, in addition to details about the specific website and target of the search, the affidavit in Martin “contained an extensive background discussion of the modus operandi of those who use computers for collecting and distributing child pornography, including their reliance on e-groups, e-mail, bulletin boards, file transfers, and online storage.” Id. at 75.

The affidavit also spelled out “the characteristics and proclivities of child-pornography collectors, specifically how they tend to collect such material, store it, and rarely destroy or discard it.” Id. The Second Circuit, in line with other circuits, had no difficulty concluding that such an affidavit rose to the level of “fair probability” and established probable cause. Id. at 76; see also United States v.

Riccardi, 405 F.3d 852, 860-61 (10th Cir.2005) (holding that affidavit’s statement that “possessors of child pornography often obtain and retain images of child pornography on their computers,” along with other facts, was “more than enough to support” probable cause); United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir.2002) (holding that affidavit supported probable cause, in part, based on “professional experience that child pornographers generally retain their pornography for extended periods”). Gourde seeks to sidestep the “fair probability” standard and elevate probable cause to a test of near certainty.

In the face of the clear teaching of Gates, Gourde argues that probable cause was lacking because the government could have determined with certainty whether he had actually downloaded illegal images. According to Gourde, the FBI could have found any records of his downloads from Lolitagurls.com from the owner’s computer, which the FBI seized before conducting the search of Gourde’s residence. Gourde posits that absent such concrete evidence, the profile data and other facts are insufficient to support a warrant.

Whether the FBI could or would have found such data on the owner’s computer is not clear from the record, nor' is this inquiry the one demanded by precedent. To be sure, this additional data would have transformed a “fair probability” to a “near certainty” that Gourde had received or possessed illegal images. Better yet, had the FBI caught him at his computer downloading the images, the certainty would have been 100 percent. Gates, however, does not compel the government to provide more facts than necessary to show a “fair probability” that Gourde had committed a crime.

Gourde’s approach imposes a standard explicitly rejected by Gates. He confuses the relaxed standard of “fair probability” with the higher standards imposed at trial. Gates, 462 U.S. at 235, 103 S.Ct. 2317 (“Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision.”). The Supreme Court requires neither a prima facie showing nor an affidavit containing facts that make it “more likely true than false” that Gourde possessed child pornography. Texas v.

Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Gourde also argues that reversal is dictated by United States v. Weber, 923 F.2d 1338 (9th Cir.1991). Weber illustrates why the Supreme Court has emphasized that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317. The circumstances in Weber, which did not even involve the Internet, were hardly comparable to Gourde’s situation.

Two years before the search warrant was sought, Weber was targeted for investigation after failing to pick up a parcel addressed to him that “apparently depict[ed] the sexual exploitation of children.” See Weber, 923 F.2d at 1340. Nothing came of that incident. Id. Then, two years later, the Customs Service sent Weber a fictitious solicitation from which he ordered, sight unseen, four pictures advertised as child pornography.

The affidavit recited these details, along with a general description of the proclivities of “pedophiles” and “child pornography collectors,” without showing the connection between Weber and these profiles and without addressing the two year lag between the first incident and the new solicitation. Id. at 1340-41. Agents executed the warrant and seized not only the four photographs ordered but a host of other images of child pornography that Weber later moved to suppress. Weber did not challenge the seizure of the four photographs, only the other images.

We reversed the denial of the suppression motion because the warrant would “justify virtually any search of the home of a person who has once placed an order for child pornography — even if he never receives the materials ordered.” Id. at 1344. The affidavit also was deficient because it did not “lay a foundation which shows that the person subject to the search is a member of the class” of collectors. Id. at 1345. Weber involved child pornography but otherwise bears little resemblance to Gourde’s situation.

Gourde’s continuous, affirmative steps to access a child pornography website can hardly be compared to the single controlled buy in Weber two years after his initial, and unconsummated, foray into child pornography. Nor is the deficiency in the Weber affidavit present here — the Moriguehi affidavit specifically identified the circumstances linking the collector profile to Gourde. We view Weber as distinguished by its facts, and we are not persuaded by Gourde’s argument that it dictates the outcome of his case.

Weber cannot be read to support Gourde’s position — that a search warrant for child pornography may issue only if the government provides concrete evidence, without relying on any inferences, that a suspect actually receives or possesses images of child pornography— without running afoul of Gates. We conclude where the dissents begin. Given the current environment of increasing government surveillance and the long memories of computers, we must not let the nature of the alleged crime, child pornography, skew our analysis or make us “lax” in our duty to guard the privacy protected by the Fourth Amendment.

We are acutely aware that the digital universe poses particular challenges with respect to the Fourth Amendment. But the result in this case, which hews to Supreme Court precedent, is hardly a step down the path of laxity and into the arms of Big Brother. The district court did not err in its denial of Gourde’s motion to suppress the more than 100 images on his computer containing child pornography. AFFIRMED as to the conviction; REMANDED to the three-judge panel to consider Gourde’s request for a limited remand under United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). .

Vladimir Nabokov, Lolita (1955). . We need not reach the issue of good faith under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because we hold there was probable cause to issue a search warrant. . In briefing and argument, the parties focused on whether the affidavit supported a finding of probable cause that Gourde violated 18 U.S.C. § 2252(a)(4)(B), knowing possession of child pornography, presumably because Gourde pleaded guilty to this provision. Significantly, the warrant authorized the FBI to look for evidence that Gourde had violated any part of §§ 2252 or 2252A.

These provisions criminalize not only possession, but they also criminalize knowing shipment of illegal images, § 2252(a)(1), receipt or distribution, § 2252(a)(2), sale, § 2252(a)(3), or attempt or conspiracy to commit any of these acts, § 2252(b)(1). . Cf. United States v. Froman, 355 F.3d 882, 885 (5th Cir.2004) (observing that membership in the Candyman eGroup, a forum dedicated to child pornography, was free and as simple as “clicking the subscribe link on the main web page”).

In Froman, the Fifth Circuit concluded that there was probable cause to believe that members of the eGroup possessed child pornography. Id. at 890-91. . In dissent, Judge Reinhardt cites Franks v. Delaware, 438 U.S. 154, 155-56, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and claims that the affidavit suffered from a material omission, namely that the government could have searched the owner’s computer and determined with certainty whether Gourde had downloaded illegal images.

Here, the affidavit candidly described that the FBI had seized the owner’s computer, a fact that figured into the totality of the circumstances analysis. Nothing suggests that the government intentionally or recklessly omitted any facts or affirmatively avoided searching the owner's computer. To call the FBI’s failure to check the owner’s computer "conscious avoidance” is pure speculation. Whether the FBI could have obtained verification of Gourde’s downloads through a digital examination of the computer is the wrong question to answer. In any event, the benchmark is not what the FBI "could have” done.

An affidavit may support probable cause even if the government fails to obtain potentially dispositive information. See United States v. Miller, 753 F.2d 1475, 1481 (9th Cir.1985) (holding that an affidavit supported probable cause even though "[(Independent verification could have been easily accomplished in this case” and the "officers failed to take these simple steps”); United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir.1995) ("[T]he magistrate judge erred in focusing his Franlcs v. Delaware analysis on what the FBI could have learned with more investigation....”); United States v.

Dale, 991 F.2d 819, 844 (D.C.Cir.1993) (noting that “failure to investigate fully is not evidence of an affiant's reckless disregard for the truth” and that "probable cause does not require an officer to ... accumulate overwhelming corroborative evidence.”) (internal quotation marks omitted). . I have some doubts about the question but I need not decide it here.