State v. Williamson

               THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                            Appellee,
                                v.
                      JAMES A. WILLIAMSON,
                           Appellant.

                            Opinion
                        No. 20220664-CA
                      Filed October 3, 2024

            Fourth District Court, Provo Department
              The Honorable Christine S. Johnson
                         No. 211401401

          Jennifer L. Foresta, Douglas J. Thompson, and
           Benjamin R. Aldana, Attorneys for Appellant
            Sean D. Reyes, Daniel W. Boyer, Natalie M.
                Edmundson, and Connor Nelson,
                     Attorneys for Appellee

 JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1     James A. Williamson appeals from his convictions on three
counts of sexual exploitation of a minor. He contends that a police
search of his residence violated his constitutional right against
unreasonable searches and seizures because the search warrant
affidavit was based on the fruits of an unconstitutional pre-warrant search of his private computer files and because a
material fact was recklessly omitted from the affidavit.
Williamson also contends that his constitutional rights to notice
and a preliminary hearing were violated because the items of
child pornography used to convict him at trial were different from
the items of purported child pornography used to bind him over
                         State v. Williamson


for trial. We see no error in the district court’s determinations that
his constitutional rights to be free from unreasonable searches and
seizures and to notice were not violated, and we conclude that any
violation of his right to a preliminary hearing was cured when he
was convicted beyond a reasonable doubt. We therefore affirm.


                         BACKGROUND

                 Tips Regarding Child Pornography

¶2      The National Center for Missing & Exploited Children
(NCMEC) is a nonprofit organization that, among other things,
operates a “CyberTipline” to “provide to individuals and
electronic service providers an effective means of reporting
internet-related and other instances of child sexual exploitation.”
About Us, Nat’l Ctr. for Missing & Exploited Child.,
https://www.missingkids.org/footer/about        (expand    “About
NCMEC’s           Programs        and       Services”      section)
[https://perma.cc/427H-DB6C]. In June 2021, the Orem City Police
Department received from NCMEC multiple CyberTipline
reports identifying dozens of files categorized as “Apparent Child
Pornography” that were saved in Google accounts associated
with Williamson. A detective (Detective) in the police
department’s special victims unit was assigned to investigate one
of those reports.

¶3     The CyberTipline report at issue identified thirty-four files.
Copies of those files were sent by Google to NCMEC, and
NCMEC placed those copies “into [a] database that law
enforcement has access to and can go view.” Using the database,
Detective opened four of the files—two pictures and two videos—
to verify their content. Each of the files contained pornographic
material; two showed images of actual persons who appeared to
Detective to be minors, and the other two showed computer-generated “animated individuals” who appeared to Detective to
also be minors.




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                        State v. Williamson


¶4     Detective then called and talked with Williamson.
Detective described the files that he had found on the Google
account and asked Williamson “to explain the situation.”
Williamson admitted that the account was his, but he said he had
not accessed it for about a year “due to him believing that it had
been hacked.”

¶5     Detective was also able to trace the IP address identified in
the CyberTipline report and determine, through information from
the internet service provider and from a records check, that
Williamson’s residence was at the physical address associated
with the IP address at the relevant time.

                        The Search Warrant

¶6     Detective prepared a search warrant affidavit, in which he
related these initial investigatory steps and findings as grounds
for the issuance of a search warrant. In the affidavit, Detective
specifically described just one of the files at issue, saying that it
showed a “[c]omputer-generated image that depicts a pre-pubescent girl, completely naked,” with “a male that is having
vaginal intercourse with her.” The affidavit then related that
“[s]everal other videos and images were located that contained
similar material with children involved in sexual acts.” An
attorney from the Utah County Attorney’s Office reviewed and
approved Detective’s affidavit “for presentation to the court.”

¶7     A search warrant was issued, and while executing the
warrant on Williamson’s residence, officers discovered in his
bedroom an open laptop computer that was logged in to an
apparent “pornographic website” under the same username as
the one identified in the CyberTipline report. The officers on scene
also found and seized thirty-four USB flash drives from
Williamson’s bedroom.

¶8     Detective later looked at the content of the flash drives and
found that “each one of [them] had at least one file that appeared
to be child pornography.” Detective did a “deeper dive” into one



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                        State v. Williamson


of the flash drives, reviewing over one thousand files. One of the
files was a picture of Williamson, but “[o]ther than this one image,
it appeared that the vast majority, if not all the other images, were
pornographic videos,” some of which appeared to depict minors.

                          The Information

¶9    Based on the foregoing evidence, Williamson was charged
with three counts of sexual exploitation of a minor. The
information described each of the three counts as follows:

       SEXUAL EXPLOITATION OF A MINOR, Second
       Degree Felony, in violation of Utah Code Ann 76-
       5b-201, in that on or about 8/5/2021, in Utah County,
       the defendant, James A. Williamson did,
       (a) knowingly produce, possess, possess with intent
       to distribute, distribute, or view child pornography;
       or (b) as a minor’s parent or legal guardian,
       knowingly consent to or permit the minor to be
       sexually exploited as described in 

-5b-201(1)(a).

                      The Preliminary Hearing

¶10 At the preliminary hearing, Detective testified regarding
his investigation, including by relaying the facts surrounding the
CyberTipline report, the results of the search conducted at
Williamson’s residence, and what he had found on the recovered
flash drives. Detective described in some detail the contents of
three specific files found on the one flash drive he had
investigated more thoroughly, testifying that they depicted sexual
activity involving pubescent and pre-pubescent minors. Based on
Detective’s testimony, the district court bound Williamson over
for trial on each of the three counts.




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                          State v. Williamson


                       The Motion to Suppress

¶11 Williamson then filed a Motion to Suppress Evidence and
Request for Franks Hearing. See generally Franks v. Delaware, 

, 171–72 (1978) (mandating, under certain circumstances,
an evidentiary hearing when a defendant makes “allegations of
deliberate falsehood or of reckless disregard for the truth” by an
affiant seeking a search warrant). He requested on two grounds
the suppression of all evidence seized during the execution of the
search warrant. First, he argued that the search warrant was
obtained in violation of his constitutional right to be free from
unreasonable searches and seizures, under both the Utah and the
United States constitutions, because the warrant was based on a
description of a file copied from Williamson’s Google account that
Detective opened and viewed without a warrant when neither
Google nor NCMEC had viewed its contents concurrently to
when they provided the files to police. Second, Williamson
argued that because the image described in Detective’s affidavit
did “not depict[] an actual child” but was, instead, “a cartoon” or
“anime,” the affidavit “omitted material information” and
“misled the reviewing magistrate into concluding that probable
cause existed for issuance of the search warrant.” On this latter
ground, Williamson also requested a Franks hearing.

¶12 At oral argument on the motion, the district court viewed
the image at issue and agreed that “[D]etective’s description of
[the file] in his affidavit as a computer generated image [was]
misleading” because it suggested that the image was a digitally
modified image of an actual child as opposed to an image that was
“completely created with digital means.” The court therefore
granted Williamson’s request for a Franks hearing.

¶13 At the Franks hearing, Detective testified regarding hash
values and the part they played in the creation of the CyberTipline
report that prompted his investigation. He noted that a “hash
value is a value that is assigned to any kind of digital file, typically
images or videos.” He then explained that a hash value functions
“like a digital fingerprint” because it is thirty-two digits long and



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                         State v. Williamson


there are thirty-six possible characters for each digit, resulting in
a myriad of potential combinations: “So the number of available
. . . combinations . . . [has] got 50 zeroes behind it, approximately.”
He testified that if two image files share the same hash value, it is
“an absolute certainty” that the files contain the same image.
Detective further explained that NCMEC has gathered “a large
database of hash values” of “images and videos that have been
previously viewed” by NCMEC or an internet service provider
and been found to contain apparent child pornography. Thus,
Detective explained, electronic service providers are able to use
hash values as a sort of “filter” to scan user accounts, detect “what
they believe to be child pornography,” and report those files to
NCMEC.

¶14 Turning to the single file he had specifically described in
his affidavit, Detective read from the CyberTipline report, which
explained that although the report answered “no” to the question
of whether the file had been reviewed by Google, other language
on the report clarified that while the contents of the file had not
been “viewed concurrently” with the making of the CyberTipline
report, “historically a person had reviewed a file whose hash or
digital fingerprint matched the hash of the reported image and
determined it contained apparent child pornography.” (Emphasis
added.) Detective also explained that he had selected this one file
because it “was the easiest one to describe” and because it
“depicted a prepubescent girl and it showed her not only nude
but engaged in sexual activity.” Detective also explained that a
deputy attorney at the Utah County Attorney’s Office had
reviewed the affidavit, had a question about “whether the image
[Detective] had listed would fit in the definition [of child
pornography] per some arguments about animated versus real
life” images, had “confer[red] with a colleague,” and, after
conferring, “didn’t have any further issues with” the affidavit as
written.

¶15 The district court ultimately denied Williamson’s motion
to suppress. The court explained that although it agreed that
“there was a material omission” in Detective’s affidavit because it



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                        State v. Williamson


failed to clarify that the file described in the affidavit contained
“an animated image” as opposed to an image of an actual child
that had been modified by a computer, the court did not agree that
this omission was recklessly made. The court determined that
because Detective had sought legal guidance, even though “he got
some bad information,” “it was not reckless for him to rely on the
legal guidance that he received.” The court also reasoned that
Detective had not had any reason to be misleading because he had
viewed other images from the CyberTipline report that “were of
actual children” and had he instead described one of those images
in his affidavit, there was “no doubt the warrant would have been
approved.” As to Detective’s viewing of files identified in the
CyberTipline report before obtaining a warrant, the court
determined that this case presented “a clean application of the
private search doctrine” because the files Detective opened had
“already [been] looked at” by Google and NCMEC since “[t]he
hash value indicates what that image is.”

                       Other Pretrial Filings

¶16 In February 2022, the State submitted a Notice of Trial
Witnesses and Exhibit List. That document listed as items the
State might seek to admit at trial the “[i]mages and videos found
on electronic devices during [the] search of [Williamson’s] room.”
In March 2022, Williamson waived his right to a jury trial, and a
bench trial was set for April 11, 2022. Also in March 2022, the
prosecutor and Detective met with Williamson’s counsel and a
defense expert. Together they viewed nineteen images and videos
that the State was considering presenting as exhibits at trial.
Absent from those nineteen images and videos was one of the
three videos Detective had described at the preliminary hearing.

¶17 On April 5, 2022, Williamson filed a Trial Brief of
Defendant. Therein, he argued that at trial the State should be
allowed to rely on only the three specific files Detective had
described at the preliminary hearing to support the three charges
against him. Williamson also argued that those three files would
not support the charges against him because two of them “most



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                         State v. Williamson


likely depict adults rather than minors” and the third should not
be admitted at trial because the defense—with trial just days
away—had not yet been permitted to view the file.

¶18 The State responded by arguing that granting the
limitation requested by Williamson “would be absurd and would
for all intents and purposes turn a preliminary hearing into a
trial.” The State argued that it had “narrowed the potential range
of pornographic images it would present at trial to nineteen files
which were [shown] to defense counsel and his expert twenty-six
days before trial” and, therefore, that “[u]sing different files than
the three described at the preliminary hearing [would] not
prejudice the ‘substantial rights of the defendant.’”

                           The Bench Trial

¶19 At the beginning of the bench trial, the district court and
counsel discussed the issues raised in Williamson’s trial brief. The
prosecutor indicated that the State had decided to present just
nine files, all of which had been recovered from Williamson’s one
USB flash drive that Detective had investigated more thoroughly.
Defense counsel renewed the argument from Williamson’s trial
brief but also conceded that the defense’s expert had concluded
that six of the nine files the State intended to present did contain
child pornography. The court took the issues raised in
Williamson’s trial brief under advisement and proceeded to the
presentation of evidence.

¶20 The State ultimately presented in its case against
Williamson only the nine files it had identified during the
discussion at the outset of the trial. Only one of those nine was
among the three that had been described at the preliminary
hearing. As to that file, the defense’s expert—who had been called
by the State as part of its case in chief—testified, with reference to
the female shown in the video, “I believe this to be a female over
the age of 18.” The expert acknowledged, however, that it was
“possible” that the female shown was a minor.




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                        State v. Williamson


¶21 After the State rested, Williamson moved for a directed
verdict, arguing that because two of the files described at the
preliminary hearing had not been presented at trial and because
the third could not be proved beyond a reasonable doubt to be a
depiction of child pornography, a not-guilty verdict was required.
The district court denied the motion, explaining that it saw
nothing in Utah’s procedural rules or case law that supported
limiting the State to just the files described at the preliminary
hearing when presenting its case at trial. Instead, the court stated,
“The State is not bound . . . to simply present the exhibits that it
presented at the preliminary hearing. It can expand upon those to
present its comprehensive or best case at trial . . . .”

¶22 At the conclusion of trial, the district court found
Williamson guilty on all three counts of sexual exploitation of a
minor. It reasoned that there were six files that both parties agreed
were child pornography and that the State had met its burden to
show that Williamson intended to possess and view those files.

                        The Posttrial Filings

¶23 Williamson thereafter moved to arrest judgment, arguing
again that the State should have been limited to supporting its
case with only the three files described at the preliminary hearing.
The district court heard oral argument on the motion and then
once more rejected this argument. The court reasoned that “there
should be some identification [of files] if requested” but that “it
was up to [the] defense to request a bill of particulars to nail that
down” and the defense had made no such request. The court
therefore denied the motion to arrest judgment.

¶24 The district court sentenced Williamson to three
concurrent prison terms of one to fifteen years. Williamson timely
appealed his conviction and sentence.




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                          State v. Williamson


             ISSUES AND STANDARDS OF REVIEW

¶25 Williamson challenges the district court’s denial of his
motion to suppress. “We review a trial court’s decision to grant or
deny a motion to suppress for an alleged Fourth Amendment
violation as a mixed question of law and fact. While the court’s
factual findings are reviewed for clear error, its legal conclusions
are reviewed for correctness, including its application of law to
the facts of the case.” State v. Fuller, 

, 

.

¶26 Williamson also argues that his constitutional rights to
notice and a preliminary hearing were violated when the district
court allowed the State to support the charges against him with
files other than those introduced at the preliminary hearing.
“Whether a defendant’s constitutional rights were violated is a
question of law, which we review for correctness.” State v.
Sheehan, 

, 

 (cleaned up).


                             ANALYSIS

                     I. The Motion to Suppress

¶27 Williamson argues that the district court erred by denying
his motion to suppress. He maintains that the police search
violated his Fourth Amendment right “against unreasonable
searches and seizures,” see U.S. Const. amend. IV, 1 because the


1. Williamson also cites the largely identical provision from the
Utah Constitution, see Utah Const. art. I, § 14, but he does not
suggest that the analysis under that provision should be different
from the analysis under its federal counterpart. Further, because
the state constitutional provision “reads nearly verbatim with the
fourth amendment,” our supreme court “has never drawn any
distinctions between the protections afforded by the respective
constitutional provisions” but has, instead, “always considered
the protections afforded to be one and the same.” State v. Watts,
                                                     (continued…)


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                         State v. Williamson


affidavit underlying the search warrant was (A) “based on the
fruits of an unconstitutional warrantless search of [his] private
files” and (B) “invalidated by the reckless omission of material
facts.” We address each argument in turn.

A.     The Warrantless Search

¶28 “As the text makes clear, the ultimate touchstone of the
Fourth Amendment is reasonableness.” Riley v. California, 

, 381 (2014) (cleaned up). “In the absence of a warrant, a search
is reasonable only if it falls within a specific exception to the
warrant requirement.” Id. at 382. One such exception is the private
search exception.

¶29 “It is well-settled that when an individual reveals private
information to another, he assumes the risk that his confidant will
reveal that information to the authorities, and if that occurs the
Fourth Amendment does not prohibit governmental use of that
information.” United States v. Jacobsen, 

 (1984); see
also United States v. Miller, 

 (1976) (explaining that
the Fourth Amendment allows prosecutors to use “information
revealed to a third party and conveyed by him to Government
authorities, even if the information is revealed on the assumption
that it will be used only for a limited purpose and the confidence
placed in the third party will not be betrayed”). However, “[t]he
Fourth Amendment is implicated . . . if the authorities use
information with respect to which the expectation of privacy has
not already been frustrated.” Jacobsen, 

. “In such a
case the authorities have not relied on what is in effect a private

 (Utah 1988). We therefore do not separately
address a state constitutional argument in our analysis. See Salt
Lake City v. Wood, 

, 

 (declining
to address the appellant’s state constitutional arguments where
the appellant “fail[ed] . . . to demonstrate that any additional or
different protection is afforded under the Utah Constitution”),
cert. denied, 

 (Utah 2000).


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                        State v. Williamson


search, and therefore presumptively violate the Fourth
Amendment if they act without a warrant.” 

 at 117‒18.

¶30 This is precisely what Williamson argues happened here—
that when, prior to obtaining a warrant, Detective opened copies
of four of Williamson’s files that had not been opened by Google
concurrently to when it passed them on to NCMEC and had not
been opened by NCMEC concurrently to when it made them
available to law enforcement, Detective “exceeded the scope of
any private search.” On this basis, Williamson contends that the
private search exception does not apply to Detective’s warrantless
search of his files.

¶31 In support of this argument, Williamson points to the
United States Supreme Court’s decision in Walter v. United States,

 (1980) (plurality opinion). Walter involved the
mistaken delivery of packages containing hundreds of boxes of 8-
millimeter film. 

. The recipient company opened the
packages and observed that the labels on the individual boxes of
film provided “explicit descriptions of the contents.” 

 at 651–52.
Suspecting contraband due to the descriptions on the boxes, the
company contacted the FBI and turned over the film. 

.
FBI agents then viewed the films with a projector, discovered that
they were indeed contraband, and filed charges based on several
of the films. 

¶32 The Walter Court concluded that the FBI agents’ viewing of
the films with a projector did not fit within the private search
exception and amounted to an unconstitutional “additional
search conducted by the FBI.” 

. The Court reasoned that
although “the nature of the contents of these films was indicated
by descriptive material on their individual containers,” 

,
those descriptions only allowed the agents to “draw inferences
about what was on the films,” 

. Thus, the Court reasoned,
“[t]he projection of the films was a significant expansion of the
search that had been conducted previously by a private party and
therefore must be characterized as a separate search.” 

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                        State v. Williamson


¶33 Williamson attempts to draw a parallel between the film
labels in Walter and the hash values at issue in this case, arguing
that “a hash value may indicate the contents of a file, but prior to
the government actually viewing the file, it can only infer the
contents from the label or hash value.” We disagree and instead
concur with the State that the search here was more akin to the
one described in United States v. Jacobsen, 

 (1984).

¶34 Jacobsen involved a package that had been damaged in
transit. 

. Employees of the common carrier transporting
the package opened it and discovered inside “a tube about 10
inches long.” 

 They slit open the tube and “found a series of
four zip-lock plastic bags, the outermost enclosing the other three
and the innermost containing about six and a half ounces of white
powder.” 

 The employees contacted the Drug Enforcement
Administration (DEA), placed the bags back inside the tube, and
returned the tube to the box. 

 When a DEA agent arrived, he
saw the tube in the box and that it had been slit open and then
proceeded to remove the four plastic bags from the tube. 

 He
also saw the white powder and removed some of it for a field test,
which revealed that the powder was cocaine. 

 at 111–12.

¶35 The Jacobsen Court determined that, under these
circumstances, the private search exception applied. 

. The
Court recognized, citing Walter, the established rule that “[t]he
additional invasions of [a person’s] privacy by the government
agent must be tested by the degree to which they exceeded the
scope of the private search.” 

. And because “the removal
of the plastic bags from the tube and the agent’s visual inspection
of their contents enabled the agent to learn nothing that had not
previously been learned during the private search,” this action
“infringed no legitimate expectation of privacy and hence was not
a ‘search’ within the meaning of the Fourth Amendment.” 

.

¶36 Given the established nature of hash values and the
meaning they convey, we conclude that this case is controlled by
Jacobsen. Detective’s action in opening four of the files that had



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                         State v. Williamson


been made available to law enforcement by NCMEC did not allow
Detective to see or discover anything “that had not previously
been learned during [a] private search.” 

 Even though the files’
contents may not have been viewed by either Google or NCMEC
concurrently to their submission to law enforcement, the contents
of files with hash values identical to those submitted to law
enforcement had been viewed and flagged previously, and
Google therefore knew exactly what was contained within each of
the files.

¶37 We simply do not agree with Williamson’s assertion that a
hash value match allows the government to “only infer the
contents” of the file. Detective testified that a hash value is “like a
digital fingerprint” and that a hash value match results in “an
absolute certainty” that the two files have the same content. 2 In
this case, Detective’s viewing of any of the reported files would
not have exceeded the scope of the preceding private search



2. This testimony is consistent with the explanation
accompanying an amendment to the Federal Rules of Evidence
that allows self-authentication of documents via the use of
matching hash values:
       Today, data copied from electronic devices, storage
       media, and electronic files are ordinarily
       authenticated by “hash value”. A hash value is a
       number that is often represented as a sequence of
       characters and is produced by an algorithm based
       upon the digital contents of a drive, medium, or file.
       If the hash values for the original and copy are
       different, then the copy is not identical to the
       original. If the hash values for the original and copy
       are the same, it is highly improbable that the
       original and copy are not identical. Thus, identical
       hash values for the original and copy reliably attest
       to the fact that they are exact duplicates.
Fed. R. Evid. 902 advisory committee’s note to 2017 amendments.


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                          State v. Williamson


because it did not have the potential to uncover any information
that had not previously been discovered by the private entities.

¶38 We also do not agree with Williamson’s argument, which
is based on the fact that some files identified in the CyberTipline
report ended up not containing child pornography, that because
a “hash match does not give a ‘virtual certainty’ that [a flagged]
item is contraband,” the private search exception cannot apply
here. (Quoting Jacobsen, 

.) Williamson misapplies
the language he quotes from Jacobsen, which does not limit the
private search exception to instances where there is a virtual
certainty that the private search revealed contraband. See Jacobsen,

. Instead, the Jacobsen Court, in concluding that the
DEA agent’s actions in that case did not exceed the private search
exception, observed that “there was a virtual certainty that
nothing else of significance was in the package and that a manual
inspection of the tube and its contents would not tell him anything
more than he already had been told.” 

 Likewise here, there was
a virtual certainty that nothing else of significance was in the files
identified in the CyberTipline report and that Detective’s
inspection of them would not tell him anything more than he
already had been told—i.e., that they contained apparent (though
perhaps not certain) child pornography.

¶39 In sum, Detective’s pre-warrant viewing of the contents of
files identified in the CyberTipline report did not constitute an
impermissible warrantless search, and the district court did not
err in denying the motion to suppress based on the argument that
it was.

B.     Reckless Omission of Material Facts

¶40 “In considering a challenge to a warrant for lack of
probable cause, we normally limit our review to the facts in the
supporting affidavit . . . .” State v. Fuller, 

, 

. However, in Franks v. Delaware, 

 (1978), the
United States Supreme Court “created a narrow exception to this
general rule by permitting a defendant to challenge a search



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                        State v. Williamson


warrant using extrinsic evidence where it is alleged that the
affidavit contains false statements or omissions.” Fuller, 

. To bring a Franks challenge, the defendant must,

       by a detailed offer of proof, (1) make[] a substantial
       showing that the affiant intentionally or recklessly
       omitted facts required to prevent technically true
       statements in the affidavit from being misleading
       and (2) demonstrate[] that the affidavit if
       supplemented by the omitted information would
       not have been sufficient to support a finding of
       probable cause.

Id. ¶ 25 (cleaned up). After meeting that burden, the defendant is
then entitled to a hearing during which the defendant “must
prove by a preponderance of the evidence both that the omission
in the affidavit was material and that the critical information was
intentionally or recklessly excluded.” Id. ¶ 26. “To show that the
affiant deliberately or recklessly misled the magistrate, the
defendant must offer either direct evidence of the affiant’s state of
mind or inferential evidence that the affiant had obvious reasons
for omitting facts.” Id. (cleaned up).

¶41 Here, the district court determined that Williamson was
entitled to an evidentiary hearing based on having made a
sufficient preliminary showing that Detective recklessly omitted
a relevant fact from his affidavit—that the image described in
detail was not just “[c]omputer-generated,” but “completely
created with digital means.” But Williamson challenges the
court’s later factual determination, after that hearing, that
although “there was a material omission” in Detective’s affidavit,
the omission was not recklessly or deliberately made.

¶42 The district court’s finding was based partly on the fact that
Detective sought legal guidance from the Utah County Attorney’s
Office. The court found, “[Detective] wanted to check the use of
[the ‘computer generated’] phrase to make sure it was accurate,
and he relied on what he was told.” The court’s finding was also



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                         State v. Williamson


based on a determination that Detective had no reason “to have
been misleading” because some of the other files he had viewed
contained images of children that were not computer-generated,
which files would have “no doubt” led to approval of the search
warrant. Thus, the court essentially determined that Detective did
not have “obvious reasons for omitting facts.” 

 (cleaned up).
And it summed up the situation as follows: “[Detective’s conduct]
amounts to picking the wrong picture after having relied on
advice from Counsel. I don’t think that that shows deliberate or
reckless misleading on the part of [Detective].” Considering the
evidence presented in the evidentiary hearing, we see no clear
error in the court’s finding that Detective’s omission was not
recklessly made, and the court therefore did not err in denying the
motion to suppress based on this argument.

        II. The Right to Notice and a Preliminary Hearing

¶43 Williamson argues that his Utah constitutional rights to
notice and a preliminary hearing were violated when the district
court—over his repeated objections—“permit[ted] trial evidence
of offenses different from those [for which he was] bound over at
the preliminary hearing.” We disagree that Williamson’s right to
notice was violated. And to the extent that his right to a
preliminary hearing may have been violated, we conclude that his
subsequent conviction beyond a reasonable doubt cured any
error.

¶44 “The preliminary hearing is a fundamental procedural
right guaranteed by article I, section 13 of the Utah Constitution.”
State v. Ramirez, 

, 

. The Utah
Constitution also guarantees a defendant the “right to adequate
notice of the charged offense.” State v. Wilcox, 

(Utah 1991). “The right to adequate notice may be based on the
general due process clause in article I, section 7 of the Utah
Constitution” or “on the more specific guarantee in article I,
section 12.” Id.; see also Utah Const. art. I, § 7 (“No person shall be
deprived of life, liberty or property, without due process of law.”);
Utah Const. art. I, § 12 (“In criminal prosecutions the accused shall



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                          State v. Williamson


have the right . . . to demand the nature and cause of the
accusation . . . [and] to have a copy thereof . . . .”). “The crux of
both theories is that a criminal defendant must be sufficiently
apprised of the particulars of the charge to be able to adequately
prepare his defense.” State v. Fulton, 

 (Utah
1987) (cleaned up). The issues in this case do not require us to
determine, between the two, which is “the precise source of the
right” to notice. See 

¶45    Our supreme court has said that

       the notice to which a defendant is constitutionally
       entitled may come through one or all of three
       sources: the charging information, a response to a
       bill of particulars under rule 4(e) of the Utah Rules
       of Criminal Procedure, or a response, under section
       77-14-1 of the Code, to a demand for the place, date,
       and time of the offense charged.

Wilcox, 

. A requesting defendant “is entitled as a
matter of right to both a bill of particulars and a specification of
the date, place, and time of the charged crime.” 

.
“However, if a defendant fails to request a bill of particulars or
make demand for the date, place, and time under section 77-14-1
and a response to either of these would have cured the claimed
deficiency, then he or she will be deemed to have waived the
constitutional right to adequate notice.” 

¶46 For many years, a request for a bill of particulars and a
demand for the place, date, and time of the offense were not the
only mechanisms by which a defendant might effectuate the
constitutional right to notice because “provid[ing] the defendant
with . . . the particulars on the nature of the State’s case” was
deemed to be one of the “ancillary purposes” of a preliminary
hearing as well. State v. Ortega, 

 (Utah 1988);
see also State v. Jensen, 

 (Utah 1908) (stating that the
“purpose” of a preliminary hearing is, in part, “to secure to the
accused, before he is brought to trial under an information, the



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                         State v. Williamson


right to be advised of the nature of the accusation against him”).
On the basis that a purpose of a preliminary hearing, when one
was requested, was to provide the notice to which a defendant is
constitutionally entitled, our supreme court developed a line of
cases standing for the proposition that once a defendant receives
notice through a preliminary hearing of the “particular
transaction” the State “ha[s] in mind,” then it is a violation of the
defendant’s right to a preliminary hearing (and, by logical
extension, of the defendant’s right to notice) to thereafter convict
the defendant based upon a different transaction. Ortega, 

 (cleaned up); see also State v. Jensen, 

, 951‒52
(Utah 1943); State v. Nelson, 

, 860‒64 (Utah 1918); State v.
Potello, 

, 14‒16 (Utah 1913); State v. Hoben, 

 (Utah 1909); Jensen, 96 P. at 1086‒87.

¶47 Williamson relies on the foregoing principle and
supporting line of cases to argue that his rights to notice and a
preliminary hearing were violated. Specifically, he observes that
he exercised his right to a preliminary hearing and that at that
hearing the State put on evidence “of three [specific] offenses
(separate items of child pornography) to support the three
charges” against him. Williamson then asserts that because he
received notice via the preliminary hearing of three specific
offenses based on three specific items of child pornography, the
State subsequently violated his right to both notice and a
preliminary hearing when at trial it proved the charges with
evidence of three different offenses (i.e., three items of child
pornography other than the ones identified at the preliminary
hearing) without first giving Williamson “proper notice [of the
alternate offenses] and a new preliminary hearing on the alternate
offenses.”

¶48 The fatal flaw in Williamson’s argument stems from the
fact that in 1995 (subsequent to the cases Williamson relies on),
article I, section 12 of the Utah Constitution was amended to
expressly declare that the function of a preliminary hearing “is
limited to determining whether probable cause exists unless
otherwise provided by statute.” Utah Const. art. I, § 12. Because



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                        State v. Williamson


no statute provides that an ancillary function of a preliminary
hearing is to fulfill the constitutional notice requirement, the 1995
amendment to article I, section 12 effectively overruled that
portion of any case that expressly or implicitly held that a request
for a preliminary hearing is one way in which a defendant may
effectuate the right to notice. 3 See State v. Aleh, 

, 

 (observing that “historically, our courts viewed
the preliminary hearing as serving secondarily as a discovery
device in which the defendant is . . . informed of the nature of the
State’s case,” but concluding that after the 1995 amendment to
article I, section 12, “the preliminary hearing’s erstwhile primary
purpose [of determining whether probable cause exists] has
become its sole purpose” (cleaned up)), cert. denied, 

(Utah 2016). Thus, the mechanisms by which Williamson was able
to effectuate his right to a preliminary hearing were limited to
requesting a bill of particulars or making a demand for the date,
place, and time of the alleged offense. See Wilcox, 

.
And when Williamson failed to avail himself of either of these
mechanisms, he waived his constitutional right to adequate
notice. See id.4



3. Subsequent to the 1995 amendment to article I, section 12 of the
Utah Constitution, this court in State v. Bragg, 

,

, again described a preliminary hearing as “one
opportunity [for the defendant] to explore the exact nature of the
charges against him and resolve any confusion about what those
charges entail[].” Id. ¶ 40. To the extent that this quoted language
from Bragg suggests that a request for a preliminary hearing
remains a viable alternative for effectuating the constitutional
right to notice, we disavow that language and any such language
found elsewhere in our case law.

4. Williamson asserts that “the focus on the bill of particulars is a
red herring,” suggesting that a bill of particulars would not have
cured the deficiency in the notice he received because he already
knew the date, time, and place of the alleged offenses for which
                                                      (continued…)


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                        State v. Williamson


¶49 Moreover, in State v. Aleh, 

, 

,
we recognized that because the sole purpose of a preliminary
hearing is to determine whether probable cause exists, “an error
at the preliminary [hearing] stage is cured if the defendant is later
convicted beyond a reasonable doubt.” 

 ¶ 15 (quoting Thomas
v. State, 

, 

). We further recognized that
“[t]his is so, even when the error consists of a complete
deprivation of a preliminary hearing.” 

 ¶ 16 (citing State v.
Hernandez, 

, ¶ 29 n.3, 

). We then considered
the proposition articulated in State v. Jensen, 

 (Utah
1943), and the other cases cited in paragraph 46 above—i.e., that
if a defendant requests a preliminary hearing and is bound over
based on a finding of probable cause as to a particular transaction,
it is reversible error to then convict the defendant based on proof
of a different transaction. See Aleh, 

, ¶ 18 n.2. And
we concluded, “To the extent that Jensen stands for the
proposition that a conviction does not cure any error in the
preliminary hearing, including the complete deprivation of a
preliminary hearing, . . . the more recent precedent on which we
rely implicitly overruled Jensen on this point.” 

¶50 Based on Aleh, even if Williamson was denied his right to
a preliminary hearing on the specific offenses for which he was


he was eventually convicted and a bill of particulars would have
provided no additional information. But a bill of particulars is not
so limited in the information it may provide. It is available
whenever “the facts necessary to inform a defendant of the nature
and cause of the offense charged are not otherwise made known
or set forth in an information or indictment.” State v. Allen, 

 (Utah 1992); see also Utah R. Crim. P. 4(e) (“When
facts not set out in an information are required to inform a
defendant of the nature and cause of the offense charged, so as to
enable the defendant to prepare a defense, the defendant may file
a written motion for a bill of particulars.”). Thus, a bill of
particulars would have given Williamson the information
required to prepare his defense, and his failure to request one is
ultimately fatal to his notice argument.


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                        State v. Williamson


ultimately convicted, see generally Utah Code § 76-5b-201(3)(b)
(stating that it is a “separate offense” “for each minor depicted in
. . . child sexual abuse material” and “for each time the same minor
is depicted in different child sexual abuse material”), that
deprivation was cured when—based in part on his own expert’s
opinion that six of the nine files the State ultimately relied on at
trial contained child pornography—he was later convicted
beyond a reasonable doubt on three charges of sexual exploitation
of a minor. See Aleh, 

.

¶51 For the foregoing reasons, we do not disturb the district
court’s findings following the bench trial or its denial of
Williamson’s motion to arrest judgment.


                         CONCLUSION

¶52 The district court did not err in determining that the
private search exception applied to Detective’s pre-warrant
viewing of files included in a CyberTipline report, nor was there
clear error in its finding that Detective’s material omission from
his search warrant affidavit was not recklessly made.
Furthermore, Williamson waived his right to notice because he
failed to use the available mechanisms to obtain more information
about the State’s case against him, and any deprivation of his right
to a preliminary hearing was cured by his subsequent conviction
beyond a reasonable doubt. For these reasons, we affirm.




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