Chism v. Washington State

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD M. CHISM, individually and 

as husband and wife; NICOLE C.

CHISM, individually and as wife

and husband,

No. 10-35085

Plaintiffs-Appellants,

v.  D.C. No.

2:09-cv-00025-LRS

WASHINGTON STATE; WASHINGTON

OPINION

STATE PATROL; RACHEL GARDNER,

individually; JOHN SAGER,

individually,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, Chief District Judge, Presiding

Argued and Submitted

February 11, 2011—Seattle, Washington

Filed August 25, 2011

Before: Betty B. Fletcher, Richard A. Paez, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Ikuta

16307

16312 CHISM v. WASHINGTON STATE

COUNSEL

Robert A. Dunn and Susan C. Nelson, Dunn & Black, P.S.,

Spokane, Washington, for plaintiff-appellants Todd M. Chism

and Nicole C. Chism.

CHISM v. WASHINGTON STATE 16313

Robert M. McKenna, Attorney General, and Catherine Hen-

dricks, Senior Counsel, Seattle, Washington, for defendants-

appellees Rachel E. Gardner and John Sager.

OPINION

PAEZ, Circuit Judge:

This civil rights action under 42 U.S.C. § 1983 arises from

an internet child pornography investigation by Washington

State Police (WSP) Officers Rachel Gardner and John Sager

(“the officers”). As a result of information the officers

acquired, Todd Chism became the focus of their investigation.

Gardner prepared an affidavit in support of a search warrant

application, which Sager reviewed. On the basis of that affi-

davit, a magistrate judge issued a broad search warrant to

search Todd Chism’s home and business office. Relying on

the same information contained in Gardner’s affidavit, Deputy

Prosecuting Attorney Christian Peters obtained from the same

magistrate judge a warrant to arrest Todd for violating Wash-

ington’s child pornography laws.1 A few days later, several

WSP officers executed the search and arrest warrants.2 A

WSP detective eventually conducted forensic examinations of

the Chisms’ home computer and computers from the Spokane

Fire Department, where Todd Chism worked as a firefighter.

The investigation did not reveal any evidence of child pornog-

raphy, and charges were never filed against Todd Chism.

1

Specifically, the arrest warrant stated that probable cause existed to

support the arrest and detention of Todd for violations of Revised Code

of Washington §§ 9.68A.060 and 9.68A.070. Section 9.68A.060 prohibits

“sending or bringing into the state depictions of a minor engaged in sexu-

ally explicit conduct.” Section 9.68A.070 prohibits “possessi[ng] depic-

tions of a minor engaged in sexually explicit conduct.”

2

The police report detailing the investigation seems to indicate that

Sager was present for the search. It is unclear from the police report

whether Gardner was present.

16314 CHISM v. WASHINGTON STATE

Several months later, Todd and his wife, Nicole Chism,

filed this § 1983 action against the State of Washington, the

WSP, Detective Gardner, and Sergeant Sager, alleging—

among other things not relevant to this appeal—that the offi-

cers violated their Fourth and Fourteenth Amendment rights

by securing the search and arrest warrants with an affidavit

that deliberately or recklessly contained material omissions

and false statements.3 The Chisms and the officers filed cross

motions for summary judgment on the issue of qualified

immunity as to the constitutional claim. The district court

granted the officers’ motion, concluding that the officers’

conduct did not violate a clearly established constitutional

right of which a reasonable officer would have known. The

Chisms timely appealed.

We reverse the district court’s judgment and remand this

case for trial. Viewing the evidence in the light most favor-

able to the Chisms, we conclude that the Chisms have made

a substantial showing of the officers’ deliberate falsehood or

reckless disregard for the truth and have established that, but

for the dishonesty, the searches and arrest would not have

occurred. We also conclude that the officers are not entitled

to qualified immunity because the Chisms’ right to not be

searched and arrested as a result of judicial deception was

clearly established at the time Gardner prepared and submit-

ted her affidavit.

I. BACKGROUND

On July 3, 2007, Washington’s Missing and Exploited

Children Task Force (MECTF) received a tip from the

National Center for Missing and Exploited Children

(NCMEC). The tip advised MECTF that roughly one week

3

In addition to their constitutional claim, the Chisms’ First Amended

Complaint alleges nine other causes of action, most of which are tort

claims relating to events that occurred after the search and arrest warrants

were executed.

CHISM v. WASHINGTON STATE 16315

earlier, the web-hosting company Yahoo! had archived

images of child pornography that were contained on the web-

site http://foelonipwin-cmezixecvom.us/ (the “foel website”).

The tip listed Yahoo! user account qek9pj8z9ec@yahoo.com

(the “first user account”) as the “suspect.” The tip stated that

Internet Protocol (IP) address 68.113.11.494 was used to open

the first user account on May 11, 2007. The tip did not pro-

vide the time or date that the child pornographic images were

uploaded to the foel website, nor did it provide the IP address

from which the child pornographic images were uploaded.

Detective Gardner was assigned to investigate this tip.

On July 17, 2007, MECTF received another tip from

NCMEC. Similar to the first tip, the July 17 tip indicated that

two weeks earlier, Yahoo! archived images of child pornogra-

phy that were contained on the website

http://qemtudawyownufiseip.com (the “qem website”). The tip

listed Yahoo! user account qaagwcyI9ab@yahoo.com (the

“second user account”) as the “suspect.” The tip stated that IP

address 67.160.71.115 was used to open the second user

account on June 19, 2007. The tip did not provide the time or

date that the child pornographic images were uploaded, nor

did it provide the IP address from which the child porno-

graphic images were uploaded. WSP Detective Vic Mauro

was assigned to investigate this tip.

The detectives began their investigations by obtaining war-

rants to search Yahoo! records associated with the first and

second user accounts.5 In agreement with the first NCMEC

tip, the Yahoo! records indicated that the foel website was

4

As we have explained, “[e]very computer or server connected to the

Internet has a unique IP address.” United States v. Forrester, 512 F.3d

500, 510 n.5 (9th Cir. 2008).

5

The record indicates that Gardner and Mauro independently obtained

warrants to search Yahoo! records associated with the NCMEC tips

because at that point in the investigation the detectives had no reason to

believe the tips were connected.

16316 CHISM v. WASHINGTON STATE

created on May 11, 2007. The information for the first user

account listed the name “Mr. Nicole Chism” with birthday

May 20, 1966. The information indicated that “Mr. Nicole

Chism” lived in Chile and used zip code “ucc16.” The Yahoo!

records also showed that the first user logged in to the account

on June 18, 2007 from IP address 69.147.83.181, a different

IP address than the one used to create the foel website. The

billing information associated with the first user account listed

Nicole Chism’s name and contained the Chisms’ correct resi-

dential address, phone number, and credit card number, which

ended in 6907. Finally, the Yahoo! records showed that two

months of “domain service” for the foel website had been

paid with the Chisms’ credit card.6 The Chisms’ credit card

statements confirm that they were twice charged a monthly

fee for domain service for the foel website.

The information that Yahoo! provided about the second

user account was similar in character. In agreement with the

second NCMEC tip, the Yahoo! records indicated that the

qem website was created on June 19, 2007. The information

for the second user account listed the name “Mr. Nicole

Chism” with a birthday of March 11, 1977; indicated that

“Mr. Nicole Chism” was from Bolivia; and used zip code

“nf897.” The Yahoo! records also showed that the second

user logged in twice since opening the account. On July 3,

2007, the second user logged in twice: once from IP address

69.147.83.181 (the IP address from which the first user

logged in on June 18, 2007), and once from a different IP

address. Yahoo! did not provide any billing information for

the second user account, but the Chisms’ credit card state-

ments showed that Yahoo! charged them one hosting fee for

the qem website on June 22, 2007.

6

The “domain service” fee is a fee that Yahoo! charges to host, or, pro-

vide server space and internet connection, for an individual website. We

use the terms “domain service fee” and “hosting fee” interchangeably

throughout.

CHISM v. WASHINGTON STATE 16317

Detectives Gardner and Mauro also independently obtained

warrants to trace the IP addresses used to create the two user

accounts and websites. Detective Gardner learned that the IP

address used to open the first user account and to create the

foel website was traced to Cheryl Corn of Walla Walla,

Washington. The IP address used to open the second user

account and to create the qem website was traced to Vitina

Pleasant of Federal Way, Washington. It appears that neither

Gardner nor Mauro traced IP address 69.147.83.181—the IP

address from which the first user logged in on June 18, 2007

and the second user logged in on July 3, 2007.

A few months later, Mauro’s assignment was transferred to

WSP Detective Shelby Wilcox. After reviewing the informa-

tion from Yahoo!, Gardner and Wilcox noticed that both user

accounts used the name “Mr. Nicole Chism” and both web-

sites had at some point been accessed from the IP address

69.147.83.181. Gardner and Wilcox concluded that the tips

might be connected, and Gardner took over the investigation

of both tips. Gardner decided to investigate the Chism lead,

largely because Nicole’s name was common to both tips.

Gardner first determined that the Chisms’ 6907 card was a

Bank of America Visa credit card. Gardner contacted Bank of

America in September 2007 and learned from a Bank of

America employee that the Chisms had reported a lost credit

card in 2006. The 6907 card was a replacement for the lost

card. The Bank of America employee, however, informed

Gardner that no fraudulent activity had been reported on the

6907 card.7 Gardner eventually obtained credit card state-

ments for the 6907 card and confirmed that the Chisms had

7

This information was, in fact, false. The Chisms reported fraudulent

activity on their 6907 card in August 2007, roughly one month after Gard-

ner received the NCMEC tips and roughly one month before Gardner

spoke to Bank of America. Because the officers were not aware of this

reported fraud at the time Gardner drafted her affidavit, we place no sig-

nificance on the omission of this relevant information from the affidavit.

16318 CHISM v. WASHINGTON STATE

paid two charges for the foel website and one charge for the

qem website. On the basis of this information, Gardner con-

cluded that there was probable cause to believe that Todd

Chism had committed a crime.

In January 2008, Gardner submitted a search warrant appli-

cation and affidavit to a magistrate judge and obtained a war-

rant to search the Chisms’ home in Nine Mile Falls,

Washington, and Todd Chism’s workplace in Spokane, Wash-

ington. Sager reviewed the affidavit and agreed that probable

cause existed. On the same day, Deputy Prosecuting Attorney

Christian Peters obtained a warrant to arrest Todd for

“[s]ending, bringing into the state depictions of minor

engaged in sexually explicit conduct and [p]ossession of

depictions of [m]inor engaged in sexually explicit conduct.”

The warrants were executed five days later. WSP officers

arrested, detained, and interrogated Todd; they scoured the

Chisms’ home; and they seized the Chisms’ computers. No

child pornography was found, and criminal charges were

never filed against Todd.

The Chisms sued the State of Washington, the WSP, Detec-

tive Gardner, and Sergeant Sager under 42 U.S.C. § 1983,

alleging violations of their constitutional rights. Both the

Chisms and the officers moved for summary judgment on the

issue of qualified immunity, and the district court granted the

officers’ motion and denied the Chisms’ motion. The district

court then declined to exercise supplemental jurisdiction over

the Chisms’ state law claims, pursuant to 28 U.S.C.

§ 1367(c)(3), and dismissed them. The Chisms appeal the dis-

trict court’s grant of summary judgment.

II. ANALYSIS

[1] We review de novo a grant of summary judgment on

the ground of qualified immunity, and “must determine, view-

ing the evidence in the light most favorable to the nonmoving

party, whether there are any genuine issues of material fact

CHISM v. WASHINGTON STATE 16319

and whether the district court correctly applied the relevant

substantive law.” Prison Legal News v. Lehman, 397 F.3d

692, 698 (9th Cir. 2005) The officers are entitled to qualified

immunity unless: (1) the Chisms have “ma[de] out a violation

of a constitutional right,” and (2) “the right at issue was

‘clearly established’ at the time of [the officers’] alleged mis-

conduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (cit-

ing Saucier v. Katz, 533 U.S. 194, 201 (2001)); Bull v. City

and Cnty. of San Francisco, 595 F.3d 964, 971 (9th Cir. 2010)

(en banc). We may consider the two prongs of the qualified

immunity analysis in any order. Pearson, 555 U.S. at 236. We

begin with the first prong.

A. Constitutional Violation

[2] The Chisms argue that the officers violated their Fourth

Amendment rights through judicial deception.8 For the

Chisms’ judicial deception claim to survive summary judg-

ment, the Chisms “must 1) make a substantial showing of [the

officers’] deliberate falsehood or reckless disregard for the

truth and 2) establish that, but for the dishonesty, the

[searches and arrest] would not have occurred.” Liston v.

Cnty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (citing

Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995)) (inter-

nal quotation marks omitted).9

8

We disagree with the Dissent’s brief suggestion that the Chisms

waived the opportunity to argue that Gardner’s affidavit contained false

statements. The Chisms’ failure to precisely articulate each false statement

and omission to support their judicial deception claim does not undermine

our ability to consider all of the false statements and omissions contained

in Gardner’s affidavit. The Supreme Court has explained that it is claims

—not arguments—that are waived by failure to present an issue to the

court below. See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374

(1991); accord United States v. Guzman-Padilla, 573 F.3d 865, 877 (9th

Cir. 2009); United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir.

2004).

9

A judicial deception claim is different from a garden-variety claim that

a warrant lacked probable cause on its face. We have explained that a

16320 CHISM v. WASHINGTON STATE

[3] We first observe that Gardner’s affidavit contained sev-

eral false statements and omissions. The first false statement

contained in Gardner’s affidavit was her assertion that,

“[b]ased on the information received from NCMEC about the

images downloaded by Todd M. Chism, it is likely to believe

he was using internet service at his residence and/or his busi-

ness office.” Gardner’s allusion to “images downloaded by

Todd M. Chism” is inaccurate. When Gardner drafted the

affidavit, she possessed no information that Todd had ever

accessed any child pornographic images, let alone the particu-

lar images that were uploaded to the qem and foel websites.

Nor did Gardner have any evidence that the images were ever

downloaded by anyone. As far as Gardner knew, the only evi-

dence linking Todd to the websites was the fact that the credit

card he shared with Nicole was used to pay the hosting fees

for the sites. Thus, Gardner’s assertion that Todd downloaded

images of child pornography was not a truthful representation

of the evidence she had gathered.

[4] The second false statement contained in Gardner’s affi-

davit was her assertion that the Chisms’ credit card was “used

to purchase the images of child pornography from the web-

site.” This statement was false because the Chisms’ credit

card was not used to buy images of child pornography.

Rather, the Chisms’ card was used to pay hosting fees for the

sites to which illegal images were uploaded at some unknown

time, date, and location. Gardner’s statement that the Chisms’

plaintiff bringing a judicial deception claim “argues that [an officer] mis-

led the magistrate judge when applying for the warrant, and had the mag-

istrate considered all of the facts that the magistrate would not have found

probable cause.” Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011). A

judicial deception claim can be contrasted with a garden-variety claim that

a warrant lacked probable cause on its face, in which “the arresting officer

enjoys qualified immunity unless the warrant application is so lacking in

indicia of probable cause as to render official belief in its existing unrea-

sonable.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986))

(internal quotation marks omitted).

CHISM v. WASHINGTON STATE 16321

card purchased child pornographic images was therefore

patently false.

[5] Gardner’s affidavit also contained several serious omis-

sions. First, Gardner omitted her discovery that the IP

addresses that were used to open the offending Yahoo! user

accounts and websites were traced to people other than the

Chisms. Second, Gardner omitted the fact that a third IP

address—69.147.83.18—was used to log in to both the first

and second user accounts on June 18, 2007, and that this IP

address was never traced. Third, Gardner omitted the fact that

Nicole shared the 6907 credit card account with Todd, even

though Nicole’s name—not Todd’s—was associated with the

two user accounts. Fourth, Gardner did not report that the user

accounts contained nonsensical identifying information.10

Having determined that Gardner’s affidavit contained false

statements and omissions, we next consider whether the

Chisms have made a substantial showing of the officers’

intentional or reckless disregard for the truth; and, if so,

whether their false statements and omissions were material to

the probable cause determinations. Liston, 120 F.3d at 973.

1. Intentional or Reckless Deception

[6] As a first element of their judicial deception claim, the

Chisms must demonstrate that the officers acted deliberately

or with reckless disregard for the truth in preparing the affida-

vit. Id. at 973. Because the Chisms appeal from a grant of

summary judgment, they need only make a “substantial show-

ing” of the officers’ deliberate or reckless false statements and

omissions. Id. “Clear proof of deliberat[ion] or reckless[ness]

is not required” at the summary judgment stage. United States

10

As described above, the first user account was registered with the

name “Mr. Nicole Chism,” the country Chile, and the zip code ucc16. The

second user account was registered with the name “Mr. Nicole Chism,”

the country Bolivia, and the zip code nf897.

16322 CHISM v. WASHINGTON STATE

v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended by 769 F.2d

1410 (9th Cir. 1985). If the Chisms make such a substantial

showing, then “the question of intent or recklessness is a fac-

tual determination” that must be made by the trier of fact. Lis-

ton, 120 F.3d at 974 (internal quotation marks omitted).

Viewing the evidence in the light most favorable to the

Chisms, we conclude that the Chisms have made a substantial

showing that the officers’ deception was intentional or reck-

less. The most commonsense evidence that the officers acted

with at least a reckless disregard for the truth is that the omis-

sions and false statements contained in the affidavit were all

facts that were within Gardner’s personal knowledge. For

example, Gardner’s false reference to “images downloaded by

Todd Chism” was a statement that Gardner knew to be false

when she drafted her affidavit.

[7] The declaration Gardner filed in the district court simi-

larly demonstrates that she knew that the IP addresses used to

register the user accounts and websites were traced to other

people, and that she knew that the identifying information for

the Yahoo! accounts was nonsensical. The fact that the affida-

vit did not report important factual information that was

within the officers’ knowledge at the time Gardner prepared

her affidavit would allow a reasonable factfinder to conclude

that the officers acted with at least a reckless disregard for the

truth. See Butler v. Elle, 281 F.3d 1014, 1025-26 (9th Cir.

2002) (per curiam); Stanert, 762 F.2d at 781; see also Liston,

120 F.3d at 975 (“Given the importance of the [omitted infor-

mation] to the probable cause analysis . . . a jury could rea-

sonably conclude that [the affiant’s] failure to mention [that

information] in his affidavit amounted to at least reckless dis-

regard for the truth.”).

[8] A reasonable factfinder could also find that the officers

acted recklessly or intentionally because the false statements

and omissions contained in the affidavit all bolster the case

for probable cause, which suggests that the mistakes were not

the product of mere negligence. It is conspicuous that, cumu-

CHISM v. WASHINGTON STATE 16323

latively, the omissions purged the affidavit of any reference

to the possibility that someone other than Todd Chism was

responsible for the offending websites. Corn and Pleasant

were the people to whom the offending IP addresses were

traced, yet this information was omitted from the affidavit.

Nicole Chism’s credit card information was used to pay the

hosting fees, yet the fact that Nicole was an authorized user

of the credit card was omitted from the affidavit. All of the

information in each Yahoo! profile was nonsensical, yet this

information was omitted from the affidavit. In short, the net

effect of Gardner’s omissions was to obscure the prospect that

someone other than Todd Chism might have registered the

websites and uploaded images of child pornography. We have

no difficulty deciding that a reasonable factfinder, viewing the

evidence in the light most favorable to the Chisms, could con-

clude that Gardner’s omissions reflected an affiant “reporting

less than the total story . . . [to] manipulate the inferences a

magistrate will draw.” Stanert, 762 F.2d at 781. Accordingly,

we hold that the Chisms made a substantial showing of the

officers’ reckless or intentional disregard for the truth.

2. Materiality of the False Statements and Omissions

[9] Our inquiry does not end with the Chisms’ substantial

showing that the affidavit contained reckless or deliberate

false statements and omissions. To make out their judicial

deception claim, the Chisms must also establish that the false

statements and omissions were material to the magistrate

judge’s probable cause determination. Our inquiry into

whether the false statements and omissions were material is

a purely legal question, which we analyze de novo. See But-

ler, 281 F.3d at 1024. The false statements and omissions

contained in Gardner’s affidavit were material if “the affida-

vit, once corrected and supplemented,” would not have pro-

vided a magistrate judge with a substantial basis for finding

probable cause. Stanert, 762 F.2d at 782. We conclude that a

corrected version of Gardner’s affidavit would not have pro-

16324 CHISM v. WASHINGTON STATE

vided the magistrate with a substantial basis for finding prob-

able cause.

i. Materiality as to the Search Warrants

[10] While there is no “numerically precise degree of cer-

tainty corresponding to probable cause, . . . it is clear that only

the probability, and not a prima facie showing, of criminal

activity is the standard of probable cause.” Illinois v. Gates,

462 U.S. 213, 235 (1983) (citing Spinelli v. United States, 393

U.S. 410, 419 (1969)) (internal quotation marks omitted). The

Supreme Court has declined to articulate a “neat set of legal

rules” for evaluating probable cause, id. at 232, and instead

has instructed magistrate judges to determine probable cause

by considering the “totality-of-the-circumstances,” id. at 230.

In issuing a search warrant, the magistrate judge simply must

determine whether there is a “fair probability” that evidence

of a crime will be found. Id. at 238, 246.

[11] Our probable cause analysis is guided by United

States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc), a

recent case involving the search of a criminal defendant’s

computer for images of child pornography. In Gourde, we

held that three key pieces of evidence, considered together,

were sufficient to establish probable cause to believe

Gourde’s computer contained images of child pornography:

(1) that the accessed website “was a child pornography site

whose primary content was in the form of images”; (2) that

as a subscriber to the website, “Gourde had access and wanted

access to these illegal images”; and (3) that “[h]aving paid for

multi-month access to a child pornography site,” and owing

to the “long memory of computers,” Gourde’s computer was

likely to contain evidence of a crime. Id. at 1070-71. In other

words, we looked for evidence in the affidavit: (1) that a

crime was committed; (2) that it was Gourde who committed

the crime; and (3) that evidence of the crime would be found

in the place to be searched. In light of this “triad of solid

facts,” we concluded that “the reasonable inference that

CHISM v. WASHINGTON STATE 16325

Gourde had received or downloaded [child pornographic]

images easily meets the ‘fair probability’ test.” Id. at 1071.

We use this framework to determine whether Gardner’s affi-

davit would have supported probable cause if it had presented

a truthful description of the evidence she collected during her

investigation of Todd Chism.

[12] Like the website at issue in Gourde, the parties do not

dispute that the qem and foel websites here contained images

of child pornography. Therefore, Gardner’s affidavit meets

the first prong of the Gourde inquiry: it presents evidence that

a crime was committed. We also assume without deciding that

Gardner’s affidavit satisfied the third prong of the Gourde

framework by presenting evidence that a computer used to

upload child pornographic images would contain evidence of

a crime.11 The remaining prong of the Gourde inquiry requires

us to consider whether a truthful version of Gardner’s affida-

vit would have provided a “fair probability” that Todd Chism

committed a crime.

[13] A truthful version of Gardner’s affidavit would have

indicated that the sole evidence connecting Todd Chism to

the child pornographic images was the fact that the credit card

he shared with Nicole was charged three times for hosting the

websites that contained child pornographic images. This con-

nection is a far cry from the facts presented in the affidavit,

which stated that Todd “downloaded” and “purchase[d]” child

pornography.12 A supplemented version of Gardner’s affidavit

11

Specifically, Gardner’s affidavit stated that “in [her] experiences and

from [her] conversations with computer forensic examiners, computer evi-

dence can remain stored on computers for extended periods of time,” and

can be recovered from a computer even if it is deleted by the user.” The

affidavit also stated that “[p]ersons involved in sending or receiving child

pornography tend to retain it for long periods of time.” The Chisms do not

challenge these assertions.

12

The Dissent downplays the significance of the affidavit’s misstate-

ments. We agree with the Dissent that the affidavit’s use of the word

16326 CHISM v. WASHINGTON STATE

also would have informed the magistrate judge that the IP

addresses used to register the websites were traced to people

other than the Chisms, and that the Yahoo! user accounts

associated with the websites contained nonsensical identifying

information. In considering all of the information available to

the officers, we do not think it sufficient to establish a fair

probability that evidence of a crime would be found at the

Chisms’ home or Todd Chism’s office.

[14] We find it particularly significant that the IP addresses

from which the qem and foel websites were created were

traced to internet subscribers hundreds of miles away from the

Chisms’ home in Nine Mile Falls, Washington. We have

explained that a computer that is connected to the internet can

be uniquely identified by its IP number, much like a land-line

phone can be uniquely identified by its phone number. See

Forrester, 512 F.3d at 510 n.5. Moreover, we have repeatedly

recognized the utility of using IP address information to

investigate child pornography offenders. See United States v.

Craighead, 539 F.3d 1073, 1080-81 (9th Cir. 2008) (holding

that probable cause existed where the IP address from which

child pornographic images were shared was traced to the

defendant); United States v. Hay, 231 F.3d 630, 634-35 (9th

Cir. 2000) (holding that an affidavit demonstrated probable

cause where the agent carefully detailed how the IP address

associated with the child pornographic images was connected

to the defendant). Our sister circuits take the same approach.

“downloaded” instead of “uploaded” is not material because evidence that

Todd Chism had uploaded images of child pornography—if such evidence

had existed—would have been just as damaging as evidence that he down-

loaded child pornography. See Revised Code of Washington

9.68A.050-9.68A.070 (prohibiting possessing, disseminating, and sending

child pornography). The problem with the affidavit is not that it uses the

word “downloaded” instead of “uploaded,” but rather, that it improperly

states that Todd Chism was the perpetrator. As we have explained, this

error was significant because there was no evidence that Todd Chism had

ever accessed either of the offending websites.

CHISM v. WASHINGTON STATE 16327

See, e.g., United States v. Vosburgh, 602 F.3d 512, 526-27 (3d

Cir. 2010) (“[S]everal Courts of Appeals have held that evi-

dence that the user of a computer employing a particular IP

address possessed or transmitted child pornography can sup-

port a search warrant for the physical premises linked to that

IP address.”) (footnote omitted); United States v. Stults, 575

F.3d 834, 843-44 (8th Cir. 2009); United States v. Perrine,

518 F.3d 1196, 1205-06 (10th Cir. 2008); United States v.

Perez, 484 F.3d 735, 738-40 (5th Cir. 2007); United States v.

Wagers, 452 F.3d 534, 539 (6th Cir. 2006)); Hay, 231 F.3d

at 635-36; see also United States v. Bynum, 604 F.3d 161, 165

(4th Cir. 2010).

[15] Here, the IP address associated with child porno-

graphic images led to locations different from the locations to

be searched, and the affidavit did not establish a physical link

between the illegal images and the locations to be searched.13

Several inferences would have to be drawn in order to con-

clude that Todd violated Washington’s laws against child por-

nography. First, one would have to infer that Todd had used

his wife’s name rather than his own to pay the hosting fees for

the sites. One would also have to infer that Todd devised a

way to access the foel and qem websites with a forged IP

address. Finally, one would have to infer from the previous

two inferences that Todd was the person who uploaded the

child pornographic images from his computer to the websites

at an unknown time, date, and location. This convoluted string

of inferences reduces the possibility that child pornography

13

We disagree with the Dissent that Gourde is factually indistinguish-

able from this case. In Gourde, we noted that the FBI was able to “link[ ]

the email user—‘gilbert95@yahoo.com,’ a known subscriber to [a child

pornographic website]—to Gourde and to his home address in Castle

Rock, Washington.” 440 F.3d at 1071. We did not specify in Gourde

whether the FBI used IP address information to link the user information

to Gourde, nor did any of the evidence in Gourde raise the specter of iden-

tity theft. In contrast to Gourde, several pieces of evidence in this case

suggested that Todd Chism was not connected to the child pornographic

images.

16328 CHISM v. WASHINGTON STATE

would be found at Todd Chism’s home and office to far

below a “fair probability.” See United States v. Weber, 923

F.2d 1338, 1345 (9th Cir. 1990) (explaining that “with each

succeeding inference, the last reached is less and less likely

to be true.”).14

Our conclusion also finds support in the WSP’s training

materials, which explain:

Much, if not all, of the cyber-evidence (the E-mail

addresses and IP addresses used) will lead you to an

innocent person. That’s why simply identifying

which account was used to commit a crime does not

provide you with probable cause to get a search or

arrest warrant for the name and address on that

account. You’ll need to do more investigating to

determine if there is a link between the account

holder (or other members of the household) with the

criminal activity that was committed with that

account.

The affidavit submitted by Marcus Lawson, the president of

a computer forensic company that examined Todd Chism’s

computers similarly admonishes:

[T]o have any success as an Internet criminal,

regardless of whether one was a thief, a hacker or a

child pornography collector, it would be incumbent

to use other people’s identities to do so. . . . It is pri-

marily for this reason that relying only on informa-

14

The Dissent argues that “the lack of a match between the IP addresses

used for registration and the Chisms’ IP address has no probative value.”

Dissent at 16339. We disagree. Where, unlike here, a person’s IP address

is used to upload or download child pornography, there is a direct link

between that person’s physical location and evidence of a crime. When

this direct link is absent, at least one, if not several, additional inferences

are necessary to conclude that evidence of a crime will be found at the

location to be searched.

CHISM v. WASHINGTON STATE 16329

tion provided by the user of a credit card that is

associated with criminal activity is inherently unreli-

able.

(emphasis added).

[16] We are mindful that “[a] letter-perfect affidavit is not

essential.” United States v. Esparza, 546 F.2d 841, 844 (9th

Cir. 1976). In this case, however, we do not believe that a rea-

sonable magistrate judge would have issued the search war-

rant if she had been apprised of an accurate version of the

evidence. We therefore hold that the affidavit’s false state-

ments and omissions were material to the probable cause

determination for the search warrants.

ii. Materiality as to Todd Chism’s Arrest

[17] Unlike the search warrants—which were supported by

Gardner’s affidavit—the warrant for Todd’s arrest was sup-

ported by a Certification of Probable Cause (CPC) from

Peters, a state prosecutor. In the CPC, Peters cited Gardner’s

investigation as the source of his information.

[18] Like Gardner’s affidavit, Peters’ CPC contained mate-

rial false statements and omissions. For example, like Gard-

ner’s affidavit, Peters’ CPC stated that the Chisms’ card was

used to “purchase the images of child pornography,” which is

a false statement. Also like Gardner’s affidavit, Peters’ CPC

omitted critical information, including the fact that the IP

addresses used to create the Yahoo! user accounts and web-

sites were traced to Corn and Pleasant. Peters similarly with-

held the fact that the two Yahoo! user accounts contained

nonsensical identifying information for the Chisms, and that

Nicole shared the 6907 credit card with Todd. These false

statements and omissions were material as to Todd Chism’s

arrest for the reasons discussed above.

[19] That the CPC supporting probable cause was submit-

ted by Peters—not Gardner—is inconsequential. In fact, the

16330 CHISM v. WASHINGTON STATE

officers do not dispute that they might be held responsible for

damages stemming from Todd’s arrest even though the war-

rant for this arrest was supported by Peters’ CPC rather than

Gardner’s affidavit. Moreover, we have held that a “deliberate

or reckless omission by a government official who is not the

affiant can be the basis for a [suppression claim under Franks

v. Delaware, 438 U.S. 154 (1978)].” United States v. DeLeon,

979 F.2d 761, 764 (9th Cir. 1992). Because Franks suppres-

sion claims and judicial deception claims under § 1983

involve the same constitutional right, we do not see any rea-

son to distinguish DeLeon from this case. Hervey, 65 F.3d at

789 (“The showing necessary to get to a jury in a section 1983

action is the same as the showing necessary to get an evidenti-

ary hearing under Franks.”). Therefore, we hold that the

Chisms have made out a judicial deception claim for Todd’s

arrest.

B. Qualified Immunity

[20] Qualified immunity shields the officers from liability

“insofar as their conduct d[id] not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Although there are genuine triable issues of fact as to

the merits of the Chisms’ judicial deception claim, our discus-

sion in the previous section demonstrates that the Chisms

have made an adequate showing that there was a constitu-

tional violation. Therefore, we must consider whether the

Chisms’ constitutional rights were clearly established at the

time that Gardner submitted her affidavit.

[21] In determining whether the Chisms’ constitutional

rights were clearly established at the time of the officers’ con-

duct, we ask whether the contours of the Chisms’ rights were

so clear that “every ‘reasonable official would have under-

stood that what he is doing violates that right.’ ” Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). Although “[w]e do not

CHISM v. WASHINGTON STATE 16331

require a case directly on point, [ ] existing precedent must

have placed the statutory or constitutional question beyond

debate.” Id.

[22] Our analysis of this prong is brief because we have

already held that governmental employees are not entitled to

qualified immunity on judicial deception claims. In Branch v.

Tunnell, 937 F.2d 1382 (9th Cir. 1991) (overruled on other

grounds by Galbraith v. City and Cnty. of Santa Clara, 307

F.3d 1119 (9th Cir. 2002)), we explained that

if an officer submitted an affidavit that contained

statements he knew to be false or would have known

were false had he not recklessly disregarded the truth

and no accurate information sufficient to constitute

probable cause attended the false statements, . . . he

cannot be said to have acted in a reasonable manner,

and the shield of qualified immunity is lost.

Id. at 1387 (quoting Olson v. Tyler, 771 F.2d 277, 281 (7th

Cir. 1985)) (internal quotation marks omitted). We have con-

sistently applied the rule that summary judgment on the

ground of qualified immunity is not appropriate once a plain-

tiff has made out a judicial deception claim.15 See, e.g., Liston,

120 F.3d at 972; Hervey, 65 F.3d at 788. In light of Branch,

Liston, and Hervey, we conclude that “every ‘reasonable offi-

15

In judicial deception cases, our qualified immunity analysis at the

summary judgment stage is swallowed by the question of reckless or

intentional disregard for the truth. See Butler, 281 F.3d at 1024 (noting

that “our cases effectively intertwine the qualified immunity question (1)

whether a reasonable officer should have known that he acted in violation

of a plaintiff’s constitutional rights with (2) the substantive recklessness

or dishonesty question”). We have explained that this “merger” is sensible

because “no reasonable officer could believe that it is constitutional to act

dishonestly or recklessly with regard to the basis for probable cause in

seeking a warrant. Accordingly, should a factfinder find against an official

on this state-of-mind question, qualified immunity would not be available

as a defense.” Id.

16332 CHISM v. WASHINGTON STATE

cial would have understood’ ” that the Chisms had a constitu-

tional right to not be searched and arrested as a result of

judicial deception. al-Kidd, 131 S. Ct. at 2083. We therefore

hold that the officers are not entitled to qualified immunity.

III. CONCLUSION

For the foregoing reasons, we reverse the district court’s

grant of summary judgment to the officers.

REVERSED AND REMANDED.

IKUTA, Circuit Judge, dissenting:

In All the President’s Men, Deep Throat famously advised

two investigative journalists that in order to find the truth,

they had to “follow the money.” In United States v. Gourde,

we endorsed this maxim, holding that payment of subscription

fees to a site on which child pornography is available was suf-

ficient to support probable cause for a search warrant. 440

F.3d 1065, 1071 (9th Cir. 2006) (en banc). Despite the fact

that this case involved a direct connection between the

Chisms’ credit card and two websites populated with child

pornography, the majority holds that the evidence was insuffi-

cient to support probable cause, and therefore the district

court erred in granting summary judgment to the police on the

basis of qualified immunity. In doing so, the majority tram-

ples on controlling precedent and defies common sense. I

respectfully dissent.

I

The Washington State Police received a hot “cybertip”

about child pornography on two Yahoo!-hosted websites.

Yahoo! lets users create their own websites (with unique

domain names) and host their own content on those websites,

CHISM v. WASHINGTON STATE 16333

including populating the websites with images. Yahoo! may

also provide users with domain-based email accounts.

The first tip directed the police to a website with the URL

http://foelonipwin-cmezixecvom.us (referred to here as the

“foel” website). According to the tip, 14 images of child por-

nography had been uploaded to this website. The tip identified

the “screen user name” for the web site as “qek9pj8z9ec” and

the email associated with this website as

“qek9pj8z9ec@yahoo.com” (referred to here as the “qek”

user name and email). Yahoo!’s subscriber information for

the website identified the subscriber as “Nicole Chism,” with

the Chisms’ address and phone number, and the qek email

address. The user’s log-in name was “qek,” with the full name

given as “Mr. Nicole Chism,” and the country identified as

“Chile.” The Yahoo! Billing History showed that the Chisms’

credit card had paid for two months of web hosting fees for

the site.

The second tip identified a website with the URL

http://qemtudawyow-nufiseip.com (referred to here as the

“qem” website). According to the tip, 63 images of child por-

nography had been uploaded to this website. The tip identified

the email associated with this website as “qaagw-

cy19ab@yahoo.com” and the user name as “qaagwcy19ab”

(referred to here as the “qaag” email and user name). Yahoo!

did not provide subscriber information, but according to

Yahoo!, the user’s full name was “Mr. Nicole Chism,” the

log-in name was “qaag,” and the country was identified as

“Bolivia.” The Yahoo! Login Tracker showed that “qaag” had

logged into the website three times, once from the same IP

address used by “qek.”

The police followed up with Bank of America, which had

issued the credit card that paid for these child pornography

sites. According to the bank, the Chisms had not reported any

fraudulent activity on their card. Reviewing the card’s billing

records, the police confirmed that the Chisms’ credit card was

16334 CHISM v. WASHINGTON STATE

used pay for the foel website for two months and the qem

website for a month.

Based on this investigation, the police could reasonably

conclude that a person using the name Chism, providing the

Chisms’ home address and phone number, and paying with

the Chisms’ credit card, had created two websites, populated

them with child pornography, and logged on to the sites sev-

eral times. Does this create a “fair probability,” Illinois v.

Gates, 462 U.S. 213, 246 (1983), that child pornography

would be found on the Chisms’ computer? Did the magistrate

judge correctly answer the “commonsense, practical question”

that there was probable cause to believe that evidence of child

pornography was located at the Chisms’ residence? Id. at 230.

These questions answer themselves: it is reasonable to “fol-

low the money” from the child pornography website, to the

fees paying to host that website, to a credit card owned by the

Chisms, to the address for the payee (which is the same

address as the website’s subscriber), and from there to the

Chisms’ computer. And if there was any doubt, Gourde

requires us to hold that there was probable cause supporting

the warrant, as explained below. Therefore, the district court

did not err in rejecting the Chisms’ claim that their Fourth

Amendment rights were violated and granting summary judg-

ment in favor of the police.

II

Our en banc decision in United States v. Gourde is directly

on point and controls our probable cause analysis here.

In Gourde, the police investigated a website that featured

child pornography (called “Lolitagurls.com”) and obtained a

membership list. 440 F.3d at 1067. The list included the name

Micah Gourde, and provided Gourde’s name, home address,

date of birth, and email address. Id. at 1068. According to the

membership list, Gourde’s credit card had been used to pay

a fee of $19.95 a month for unlimited access to the website

CHISM v. WASHINGTON STATE 16335

and its images for over two months, until the FBI shut down

the site. Id. at 1067-68.

We concluded, based on the evidence that Gourde’s credit

card had been used to pay subscription fees to a site that con-

tained child pornography, that there was a “fair probability”

that “Gourde’s computer contained evidence that he violated”

federal child pornography laws. Id. at 1069.

First, we inferred that Gourde “had access and wanted

access to [ ] illegal images.” Id. at 1070. We based this infer-

ence on evidence that Gourde had been a paying member of

a website containing images of child pornography. Because

his credit card had been used to pay for access to the website,

and Gourde could not have paid two months of subscription

fees “by accident or by a mere click of a button,” id., we rea-

soned that Gourde had knowingly and willingly paid for

unlimited access to illegal images, see id. at 1070-71.

Given this conclusion, we made the further inference that

there was “near certainty that his computer would contain evi-

dence of a crime had he received or downloaded images” in

violation of federal law. Id. at 1071. As we explained, “[i]t

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 down-

loaded such images onto his computer.” Id.

Based on this “triad of solid facts,” namely that: (1) “the

site had illegal images,” (2) the inference that Gourde

intended to have and wanted access to these images; and (3)

our further inference that “these images were almost certainly

retrievable from his computer if he had ever received or

downloaded them,” we determined that “the reasonable infer-

ence that Gourde had received or downloaded images easily

meets the ‘fair probability’ test.” Id. “Employing the princi-

ples of Gates-practicality, common sense, a fluid and non-

16336 CHISM v. WASHINGTON STATE

technical conception of probable cause, and deference to the

magistrate’s determination,” we concluded that the search

warrant was supported by probable cause. Id.

In reaching this conclusion, we rejected Gourde’s argument

that the police should have looked for evidence of Gourde’s

downloads in the computer hosting the child pornography

website, and his claim that “absent such concrete evidence,

the profile data and other facts are insufficient to support a

warrant.” Id. at 1072. We disagreed that the police had any

obligation to conduct such additional investigation or obtain

any additional evidence: Gourde asserted that the police did

not need to turn a “fair probability” into a “near certainty.” Id.

at 1073.

Gourde is directly applicable and controls the outcome of

this case. The same “triad of solid facts” found in Gourde are

present here: (1) the foel and qem websites contained images

of child pornography, (2) the Chisms’ credit card paid to host

both sites, raising the inference that the Chisms intended to

have and wanted access to these images, and therefore (3)

images of child pornography “were almost certainly retriev-

able from [the Chisms’] computer if [the Chisms] had ever

received or downloaded them.” Id. at 1071. Like the defen-

dant in Gourde, the Chisms could not have paid two months

of hosting fees for the sites “by accident or by a mere click

of a button,” id. at 1070, and the inference that the Chisms’

computer contained child pornography was eminently reason-

able given that they paid multi-month fees to host a child por-

nography website, see id. at 1071. Under Gourde, these two

facts raise the additional inference that images of child por-

nography were retrievable from the Chisms’ computer had

they “ever received or downloaded them.” Id. at 1071. Indeed,

this additional inference is even stronger here than it was in

Gourde, because there was evidence that the user names asso-

CHISM v. WASHINGTON STATE 16337

ciated with a “Mr. Nicole Chism” were used to log in to both

the foel and qem websites.1

Under any reasonable reading, Gourde dictates that the link

between the Chisms’ credit card and the websites containing

child pornography, coupled with the multi-month charges, the

repeated log-ins, and the lack of any billing challenge from

the Chisms, is necessarily sufficient to establish probable

cause. Even viewing the record in the light most favorable to

the Chisms, the police had probable cause to search the

Chisms’ residence irrespective of any alleged misrepresenta-

tions or omissions in the affidavits submitted to obtain the

search and arrest warrants. The Chisms therefore suffered no

Fourth Amendment violation, and their § 1983 claim for judi-

cial deception must fail as a matter of law.

III

In supporting its contrary conclusion, the majority relies on

both omissions and alleged false statements in the affidavit,

Maj. Op. at 16320-21, but places the most weight on alleged

misrepresentations that are clearly immaterial. Indeed, their

immateriality is amply evidenced by the fact that the Chisms

failed to even mention the alleged misrepresentations until

this appeal. Before the district court, the Chisms alleged only

that the affidavit contained material omissions. Now, for the

1

The majority’s attempt to distinguish Gourde is unavailing. See Maj.

Op. at 16327 n.13. In Gourde, the FBI used subscription information pro-

vided by Lancelot Security to link membership in the Lolitagurls.com

website to Gourde and his home address in Castle Rock, Washington. 440

F.3d at 1070-71. Here, the police used subscription information provided

by Yahoo! and credit card information provided by Bank of America to

link the user accounts for the foel and qem websites to the Chisms and

their home address in Nine Mile Falls, Washington. The information is

effectively identical. In addition, the majority’s attempted distinction of

Gourde on the ground that none of the evidence in that case raised “the

specter of identity theft” is peculiar, given the majority’s correct statement

that here the police had no reason to know of any reported credit card

fraud. Maj. Op. at 16317 n.7.

16338 CHISM v. WASHINGTON STATE

first time on appeal, the Chisms raise the claim that the affida-

vits contained recklessly made false statements. Even assum-

ing the latter claim is appropriately before us, cf. Whittaker

Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992),

it is baseless in any event.

To be clear, the Chisms have been able to dig up only two

alleged false statements in the police officers’ affidavit. First,

the affidavit notes the credit card number used to pay for the

foel website, and states: “This is the [credit] card the suspect

used to purchase the images of child pornography from the

website ‘[foel].’ ” Although the majority places much weight

on the fact that the credit card “was not used to buy images

of child pornography,” Maj. Op. at 16320, this error in the

affidavit is immaterial, given that the Chisms’ credit card was

used to buy the website itself, that is, to pay hosting fees for

a website populated with child pornography. While the affida-

vit’s misstatement may evince carelessness, or a lack of preci-

sion, it does not establish a deliberate or reckless disregard for

truth.

Second, the affidavit states, “Based on the information

received from NCMEC about the images downloaded by

Todd M. Chism, it is likely to believe he was using internet

services at his residence and/or business office.” Again, the

majority makes much of the fact that there was no evidence

that Todd Chism had downloaded images of child pornogra-

phy. But any error is again immaterial. The evidence estab-

lishes that someone controlling the foel website uploaded

child pornography to the website, and uploading images of

child pornography raises exactly the same inferences as

downloading such images. Moreover, Gourde instructs that

we can infer that a person who pays for access to images of

child pornography has downloaded them. 440 F.3d at 1071.

Again, the affidavit’s use of the word “download” instead of

“upload” cannot be the basis of a judicial deception claim.

The majority places less weight on the alleged omissions in

the affidavit, and for good reason: they are either immaterial,

CHISM v. WASHINGTON STATE 16339

or not really omissions at all. First, the majority points to the

affidavit’s failure to state that the IP addresses used to register

the foel and qem websites were traced to Cheryl Corn and

Vitina Pleasant. Maj. Op. at 16317, 16321. This carries little

weight, given that the credit card used to pay the hosting fees

for the sites and the usernames used to log in to both sites

were registered to the name “Chism.” Moreover, given the

existence of proxy software, which allows an unknown indi-

vidual to log on to the internet under another person’s IP

address, the lack of a match between the IP addresses used for

registration and the Chisms’ IP address has no probative

value. See, e.g., United States v. Vosburgh, 602 F.3d 512, 527

n.14 (3d Cir. 2010) (recognizing that “proxy servers can be

used to mask IP addresses”); Tagged, Inc. v. Does 1 Through

10, 2010 WL 370331, at *2 (N.D. Cal. Jan. 25, 2010) (finding

IP address information unreliable where pattern of IP

addresses indicated the use of a proxy server). In other words,

while a match between an IP address associated with porno-

graphic images and the IP address of a defendant’s computer

increases probable cause that the defendant is involved in a

crime, as the majority argues, Maj. Op. at 16326-27, no case

has relied on the reverse proposition (that the lack of a match

between an IP address associated with such images and the IP

address of the defendant’s computer reduces probable cause

of the defendant’s involvement). Indeed, in this case, the FBI

determined that proxy software had been installed on Cheryl

Corn’s computer, allowing an unknown individual to log onto

the internet under her IP address. Thus the absence of infor-

mation in the affidavit about the IP addresses used to register

the foel and qem sites was immaterial.

Second, Agent Gardner’s failure to disclose the fact that the

police never traced the IP address that was used to log in to

both the foel and qem websites, Maj. Op. at 16317, 16321,

cannot be deemed an omission: as in Gourde, the police have

no obligation to turn a “fair probability” into a “near certain-

ty” by conducting such an additional investigation. 440 F.3d

at 1071. As Gourde explained, “[a]n affidavit may support

16340 CHISM v. WASHINGTON STATE

probable cause even if the government fails to obtain poten-

tially dispositive information,” id. at 1073 n.5.2

Third, the majority’s reliance on the omission of the infor-

mation that Nicole and Todd Chism both used the credit card

that paid the hosting fees, Maj. Op. at 16320-21, is baffling.

Surely the failure to inform the magistrate judge that hus-

bands and wives often use the same credit card cannot be

deemed a material omission. At a minimum, this revelation

would not have changed the “fair probability” that child por-

nography would be found at the Chisms’ residence.

In fact, no weight can be placed on any of the alleged mis-

representations and omissions given the ample evidence to

support probable cause, and thus they cannot be used to sup-

port a judicial deception claim. It is well established that

“[o]missions or misstatements resulting from negligence or

good faith mistakes will not invalidate an affidavit which on

its face establishes probable cause.” United States v. Smith,

588 F.2d 737, 740 (9th Cir. 1978). Here, even if the affidavit

was corrected per the Chisms’ claimed omissions and misrep-

resentations, it was not “so lacking in indicia of probable

cause as to render official belief in its existence unreason-

able.” Malley v. Briggs, 475 U.S. 335, 345 (1986).

Finally, the majority errs in its determination that the affi-

davit failed to establish probable cause because the police did

not establish “a physical link between the illegal images and

the locations to be searched.” See Maj. Op. at 16327. The

majority’s ruling is directly contrary to the Supreme Court’s

decision in Gates, which held that a determination of probable

2

The majority’s argument that the lack of a match between the IP

address used to register the foel and qem websites is a material omission

and reduces probable cause because it means that “one additional infer-

ence is necessary to conclude that evidence of a crime will be found at the

location to be searched,” Maj. Op. at 16328 n.14, likewise runs afoul of

Gourde’s admonition that the government need not “obtain potentially dis-

positive information.” 440 F.3d at 1073 n.5.

CHISM v. WASHINGTON STATE 16341

cause must be based on the totality of the circumstances, not

on the presence or omission of specific items of evidence. 462

U.S. at 230-31; see also United States v. Martinez-Garcia,

397 F.3d 1205, 1217 (9th Cir. 2005). And it is directly con-

trary to Gourde, which rejected the necessity for the sort of

evidence (e.g., an IP address association or physical link) that

the majority suggests is required. There was no need, Gourde

tells us, for the police to develop any evidence that Gourde

had ever received or downloaded images, let alone evidence

of downloads traced to his IP address. See 440 F.3d at

1072-73. Given the government’s evidence that phony IP

addresses abound in cyberspace, the majority’s “physical

link” rule will baffle many an investigation into child pornog-

raphy and its users and peddlers.

IV

While it turns out that the Chisms were not responsible for

the child pornography websites under investigation by the

police, ample evidence pointed to the conclusion that they

were. The evidence established more than a fair probability

that child pornography would be found on computers at the

Chisms’ residence; indeed, Gourde compels the conclusion

that the police had probable cause for the search.3 Therefore,

there was no constitutional violation, and the district court did

not err in granting summary judgment to the police on the

basis of qualified immunity. In concluding that evidence lead-

ing to suspects who are paying to host their own child pornog-

raphy websites does not create a “fair probability” that child

pornography will be found on the suspects’ computer, the

majority turns its back on Deep Throat’s adage, our case law,

and the Supreme Court’s probable cause jurisprudence. I dis-

sent.

3

Though the arrest warrant is a closer question, the evidence also sup-

ported probable cause to arrest either Todd or Nicole Chism. See Smith v.

Almada, 640 F.3d 931, 937 (9th Cir. 2011).