State v. McNutt

                                       142

Argued and submitted October 30, 2019, pretrial order reversed and remanded
                             March 18, 2020


                      STATE OF OREGON,
                       Plaintiff-Appellant,
                                 v.
                 SCOTT MICHAEL McNUTT II,
                     Defendant-Respondent.
                 Washington County Circuit Court
                      17CR52858; A167963
                                   

     The state appeals from a pretrial order granting defendant’s motion to suppress evidence obtained pursuant to a search warrant. The trial court ruled
that the affidavit filed in support of the warrant did not establish probable cause
that the files on defendant’s computer contained child pornography in violation
of ORS 163.684 and ORS 163.686. Held: The affidavit included three sets of
facts that collectively established probable cause that the files on a computer in
defendant’s home contained child pornography: (1) the names of two specific files
downloaded from the computer implied that both files contained child pornography; (2) an experienced detective’s assessment after viewing some of the 300 files
downloaded from the computer that those files contained child pornography; and
(3) defendant’s use of a network that is commonly employed to share child pornography over the internet.
    Pretrial order reversed and remanded.



    Andrew Erwin, Judge.
   Christopher A. Perdue, Assistant Attorney General,
argued the cause for appellant. Also on the briefs were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Adam L. Dean argued the cause and filed the brief for
respondent.
   Before DeHoog, Presiding Judge, and Mooney, Judge, and
Kistler, Senior Judge.
    KISTLER, S. J.
    Pretrial order reversed and remanded.
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           KISTLER, S. J.

         The state appeals from a pretrial order granting
defendant’s motion to suppress evidence obtained pursuant
to a search warrant. The trial court ruled that the affidavit
filed in support of the warrant did not establish probable
cause that the files on defendant’s computer contained child
pornography. We reverse the trial court’s order.

         We take the facts from the affidavit filed in support of the warrant. BitTorrent is a peer-to-peer (P2P) filesharing network that allows persons to share pictures and
videos over the internet. “P2P file sharing networks, including the BitTorrent network, are frequently used to trade
digital files of child pornography.” A BitTorrent user will
begin the process of sharing files by creating a “torrent.”
The torrent does not contain the file being shared; rather,
it typically contains a name or description of the file and
identifies computers in the BitTorrent network where the
file may be found.1

        A person looking for a particular subject on the
BitTorrent network can conduct a keyword search to find
torrents that describe files of potential interest. The affiant
explained:
        “For example, a person interested in obtaining child
    pornographic images on the BitTorrent network would
    open the BitTorrent client application on his/her computer
    and conduct a keyword search for files using a term such as
    ‘preteen sex.’ … The results of the torrent search are typically returned to the user’s computer by displaying them
    on the torrent hosting website. The hosting website will
    typically display information about the torrent, which can
    include the name of the torrent file, the name of the file(s)
    referenced in the torrent file, the file(s) size, and the ‘info-hash’ SHA-1 value of the torrent file. The user then selects
    a torrent of interest to download to their computer.”

     1
       A torrent ordinarily uses “trackers” to identify peers on the network who
are sharing the file described in the torrent. The BitTorrent program permits
users to download the entire file from a single computer or constituent parts of a
file from multiple computers, and it uses a unique “info-hash” or “SHA-1” value
for each file to ensure that the constituent parts form a single file.
144                                                          State v. McNutt

         In this case, two Oregon detectives were investigating the BitTorrent network to identify persons sharing
child pornography in Oregon. One detective focused on a
particular computer located in Oregon “because it was associated with a torrent” that referred to “a file of investigative
interest to child pornography investigations.” Based on the
information contained in the torrent, the detective “directly
connected” to the computer and downloaded the following
file from that computer: “Cp 9Yo Dad Cum Face Dee And
Desi Zadoom Pedo Cumshot 9.mpg.”
         Two days later, the detective investigated another
torrent that “was identified as being a file of investigative
interest to child pornography investigations.” That torrent
was associated with the same computer, and the detective
downloaded the following file from that computer: “11yo -
girl - Preteen girl just wants to Fuck & Suck (Sound).avi.”
At approximately the same time, the other detective learned
that the computer from which those two files were downloaded was located in defendant’s home in Washington
County.2 During a 30-day period, the detectives downloaded
approximately 300 files from a computer in defendant’s
home.3
          The detectives transferred all the downloaded files
to Detective Kiurski in the Washington County Sheriff’s
Office. Kiurski has substantial training and experience in
investigating child sex crimes.4 He “briefly looked at some
of th[e] files [downloaded from the computer in defendant’s
home] and verified that there were over 300 files downloaded
between 1/2/17 and 2/3/17 from the [computer in defendant’s
home] to [the detectives’ computer] and that those files did
contain child pornography.”
     2
       Neither detective knew initially that the computer was in defendant’s
home. They knew only its unique internet protocol address. Later, the detectives
learned that the computer’s internet protocol address had been assigned to a
computer in defendant’s home.
     3
       The detectives downloaded the two named files on January 6 and January 8,
2017. They downloaded more than 300 files from defendant’s computer between
January 2 and February 3, 2017.
     4
       Kiurski had received over 400 hours of training relating to the investigation of sex crimes and child abuse when he investigated this case. Additionally,
for approximately the last five years, he had devoted all his time as a detective to
investigating crimes against children.
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        Based on that and other information, Kiurski concluded that he had
    “probable cause to believe that one or more of the occupants
    residing at [defendant’s home between August 2016 and
    January 25, 2017] used a computer(s), cell phone(s), tablet(s)
    or mobile electronic device, that more likely than not is
    located [at defendant’s home] to engage in Encouraging
    Child Sexual Abuse in the First Degree in violation of
    ORS 163.684 and Encouraging Child Sexual Abuse in the
    Second Degree in violation of ORS 163.686.”
Kiurski requested a warrant authorizing the seizure and
search of computers and related electronic devices for evidence of the crimes of first- and second-degree encouraging
child sexual abuse. See ORS 163.684 (defining first-degree
encouraging child sexual abuse); ORS 163.686 (defining
second-degree encouraging child sexual abuse). Having concluded that there was probable cause to seize and search
those devices, the magistrate issued the warrant.
         Defendant moved to suppress the evidence discovered as a result of executing the warrant. His argument in
support of the motion was narrow. He did not challenge any
of the facts recited in the affidavit, nor did he dispute that
the affidavit established probable cause that all the downloaded files (the two named files and the approximately 300
unnamed files) would be found on a computer in his home
and related electronic devices. He did not contend that the
warrant was overbroad, nor did he argue that the officers
exceeded the scope of the warrant in executing it.5 Rather,
his argument focused on one issue: He argued that the warrant failed to establish probable cause that any file on his
computer contained child pornography.
        On that issue, defendant began from the premise that Kiurski’s affidavit reduced to a conclusory assertion that some of the files downloaded from a computer in
defendant’s home contained “child pornography.” Defendant
contended that, to establish probable cause, the affidavit
    5
      Defendant also does not argue that the officers engaged in an impermissible
search when they downloaded files that were publicly available on the BitTorrent
network; that is, he does not argue that the state unconstitutionally obtained the
evidence on which it based its probable cause argument.
146                                          State v. McNutt

needed either to attach copies of the downloaded files to
the affidavit, describe specifically the contents of the downloaded files, or include more inculpatory circumstances
than Kiurski’s affidavit had. Defendant reasoned that a
conclusory assertion that the files contained child pornography did not provide a sufficient basis for the magistrate
to make an independent determination that the files, in
fact, depicted children engaged in sexual conduct. The state
responded that not only did the affidavit establish that a
detective who was experienced in investigating child sex
crimes had viewed the files and determined that they contained child pornography, but the attendant circumstances
set out in the affidavit corroborated Kiurski’s determination. It followed, the state argued, that the magistrate reasonably concluded that the affidavit established probable
cause.
        After carefully considering the parties’ arguments,
the trial court ruled in defendant’s favor. It accordingly
granted his motion to suppress and entered a pretrial order
suppressing the evidence discovered as a result of the warrant. The state appeals from that order.
         On appeal, the parties reiterate the positions they
asserted below. Additionally, defendant argues that the trial
court’s ruling may be affirmed on an alternative ground. He
argues for the first time on appeal that, even if the affidavit
was sufficient to establish probable cause, the warrant did
not comply with State v. Mansor, 

, 

(2018). We begin with the predicate question whether the
warrant established probable cause that the files on a computer in defendant’s home contained child pornography. In
doing so, we analyze that question initially under Article I,
section 9, of the Oregon Constitution and then turn to the
Fourth Amendment to the United States Constitution.
                    I. PROBABLE CAUSE
A.    Article I, section 9
        As noted above, defendant does not controvert or
otherwise challenge any of the facts set out in the affidavit.
We accordingly accept those facts as true, as well as any
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inferences that the magistrate reasonably could have drawn
from them. See State v. Webber, 

, 347 & n 7,

 (2016) (stating the standard of review). The
question accordingly becomes a legal one: Did the facts in
the affidavit and all reasonable inferences that can be drawn
from those facts establish probable cause that a computer
in defendant’s home contained “visual recording[s] of sexually explicit conduct involving a child.” 6 See ORS 163.684
(prohibiting producing or distributing visual recordings of
sexually explicit conduct involving a child or possessing that
material with the intent to distribute it); ORS 163.686 (prohibiting possessing or acquiring visual recordings of sexually explicit conduct involving a child); State v. Bray, 

, 

 (2007) (discussing the crime of
first-degree encouraging child sexual abuse).
          In answering that question, we use the phrase
“child pornography” in this opinion as a shorthand way of
describing the material that ORS 163.684 and ORS 163.686
prohibit—namely, visual recordings of sexually explicit
conduct involving a child. Additionally, in determining
whether Kiurski’s affidavit established probable cause that
the files on defendant’s computer contained child pornography, we are mindful that “[t]he standard is one of probability, not certainty,” and that “the facts articulated in support
of probable cause must be assessed in a commonsense and
realistic fashion.” State v. Foster, 

, 

 (2011).
          With those considerations in mind, we turn to three
sets of facts set out in the affidavit that, we conclude, collectively establish probable cause that the files on a computer
in defendant’s home contained child pornography: (1) the
two named files that were downloaded from a computer in
defendant’s home; (2) an experienced detective’s assessment
after viewing some of the 300 files downloaded from the
same computer that those files contained child pornography; and (3) defendant’s use of a network that is commonly
employed to share child pornography over the internet.

     6
       The phrase “sexually explicit conduct” means, among other things, actual
or simulated sexual intercourse, oral-genital contact, anal-genital contact, and
“[l]ewd exhibition of sexual or other intimate parts.” ORS 163.665(3).
148                                                          State v. McNutt

          We focus initially on the two named files downloaded from the computer in defendant’s home.7 One file was
titled, “Cp 9Yo Dad Cum Face Dee And Desi Zadoom Pedo
Cumshot 9.mpg.” The magistrate reasonably could have
inferred that “Cp” was an abbreviation for child pornography. See Bray, 

 (explaining that the defendant
in that case saved images of “child pornography” to a computer folder labeled “CP”). The magistrate also reasonably
could have inferred that “9Yo” referred to the age of the children depicted in the file. The name of the file then describes
the result of a sexual activity presumably between “Dad”
and two nine-year-old children Dee and Desi. Finally, the
title of the first file ends with the phrase, “Pedo Cumshot.”
The magistrate reasonably could have inferred that, in context, the phrase referred to sexually explicit activity involving pedophilia.
          The title of the second file is equally telling:
“11yo - girl - Preteen girl just wants to Fuck & Suck (Sound).
avi.” That title leaves little doubt as to the age of the child
(preteen), her gender, or the sexual activities depicted. The
titles of those two files permitted the magistrate reasonably
to infer that both files contained, as the title for one of those
files explicitly stated, “Cp” or child pornography.
          Defendant, however, discounts the significance of
those two file names. He argues that the affidavit stated
only that those two files were “of ‘investigative interest to
child pornography investigations.’ It did not allege that
[the] files were ‘child pornography.’ ” In our view, defendant
misperceives what the affidavit said. The part of the affidavit that defendant quotes describes why the detectives
focused on the torrents that led them to download the two
named files. It does not purport to preclude the magistrate
from considering the names of those two downloaded files
in determining whether they contained child pornography.
See Foster, 

 (reminding courts to consider

    7
      Although the affidavit is not completely clear on this point, the magistrate
reasonably could have inferred that the file names set out in the affidavit were
taken from the two files downloaded from defendant’s computer rather than from
the description of those files in the torrents. Not only is that a permissible reading of the affidavit, but it is the more reasonable reading based on the sentence
structure.
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the “totality of the circumstances” in assessing probable
cause).8
         We need not decide whether the magistrate could
have relied solely on the names of the two files downloaded
from a computer in defendant’s home in finding probable
cause that those files contained child pornography. See
United States v. Miknevich, 

 (3d Cir), cert
den, 

 (2011) (relying, in part, on the graphic title
of a single computer file to find probable cause that the file
and the computer from which it was downloaded contained
child pornography). In this case, the affidavit also states that
Kiurski, a detective who had extensive training and experience investigating child sexual abuse crimes, personally
viewed some of the 300 files downloaded from defendant’s
computer and concluded that those files contained child pornography in violation of ORS 163.684 and ORS 163.686.9
Kiurski’s assessment of the contents of the downloaded files
corroborates what the names of the two files implied and
further supports the magistrate’s determination that there
was probable cause that the files on a computer in defendant’s home contained visual recordings of sexually explicit
conduct involving children.
          Defendant argues that an assertion that an image
or video is “child pornography” is a subjective determination
that is entitled to little or no weight in determining probable cause. As noted above, however, the magistrate reasonably could have inferred that Kiurski determined that
the files he viewed contained child pornography in violation

     8
       In the trial court, defendant argued that the two files names did not necessarily establish that the files depicted “sexually explicit conduct” with a child.
For example, he argued that the second file could have merely portrayed an
11-year-old girl who was excited about engaging in the named activities and that
it did not necessarily follow from the file name that the file actually depicted her
engaging in those activities. Suffice it to say that the affidavit should be read in
“a commonsense and realistic fashion” and that “probability, not certainty,” is the
standard for probable cause. See Foster, 

 (stating that principle).
     9
       Kiurski stated at one point in his affidavit that the files he viewed contained
“child pornography.” At another point, he concluded that the evidence established probable cause that those files violated ORS 163.684 and ORS 163.686.
The magistrate reasonably could infer from those two statements that Kiurski
concluded that the files he viewed contained “child pornography” in violation of
ORS 163.684 and ORS 163.686—that is, they depicted sexually explicit conduct
involving children.
150                                                          State v. McNutt

of ORS 163.684 and ORS 163.686. Those statutes prohibit
possessing, producing, or distributing “visual recording[s]
of sexually explicit conduct involving a child”—conduct
that includes actual or simulated sexual intercourse, oral-genital contact, anal-genital contact, masturbation, and
“[l]ewd exhibition of sexual or other intimate parts.” See
ORS 163.665(3) (defining sexually explicit conduct). It follows that the question whether an image or a video depicts
sexually explicit conduct involving a child often will entail
an objective assessment, and Kiurski’s conclusion that the
files he viewed constituted child pornography in violation of
ORS 163.684 or ORS 163.686 is entitled to greater weight
than defendant perceives.10
         To be sure, other cases may turn on more subjective
prohibitions and thus require more explicit descriptions of
the images to establish probable cause that those images
are pornographic. For example, in United States v. Brunette,

 (1st Cir 2001), the court considered whether
there was probable cause that an image constituted a “lascivious exhibition of [a child’s] genitals” in violation of a federal statute. 

. The court explained that it had
adopted a six-factor test to determine when a picture would
be considered a “lascivious exhibition” and that an affidavit that merely parroted the statutory prohibition was not
sufficient to establish probable cause that the picture was
pornographic.11 See 

.
     10
        Although the definition of sexually explicit conduct in ORS 163.665(3) primarily lists conduct that can be assessed objectively (sexual intercourse, oral-genital conduct, masturbation, and the like), one listed act—“[l]ewd exhibition
of sexual or other intimate parts”—may entail a more subjective assessment. In
this case, Kiurski did not rely explicitly on “[l]ewd exhibition” in concluding that
the files he viewed constituted child pornography in violation of ORS 163.684
and ORS 163.686. And the titles of the two files set out in the affidavit permitted
the magistrate to infer that the files Kiurski viewed were not limited to “[l]ewd
exhibition” but included other sexually explicit conduct listed in ORS 163.665(3),
that can be assessed objectively.
     11
        Not all pictures of naked children are lascivious, as a quick survey of
Renaissance art reveals. See, e.g., Putti with a Wine Press, National Gallery of
Art, Washington, D.C. (attributed to a follower of Raphael c. 1500). Presumably,
to distinguish putti from pornography, the First Circuit considers whether a
child’s genitals or pubic area is the focal point of the image, whether the setting
is sexually suggestive, whether the child is depicted in an unnatural pose or inappropriate attire, whether the child is clothed, partially clothed, or nude, whether
the image suggests sexual coyness, and whether the image is designed to elicit a
sexual response in the viewer. Brunette, 

 n 4.
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         By contrast, an experienced officer’s assessment
that an image or video depicts sexually explicit conduct
in violation of ORS 163.684 and ORS 163.686 involving a
child can encompass a more objective conclusion and thus
be entitled to greater weight in a magistrate’s determination of probable cause. We need not decide whether Kiurski’s
assessment that the files he viewed constituted child pornography in violation of ORS 163.684 and ORS 163.686 would
be sufficient, standing alone, to establish probable cause. We
note only that the greater specificity that Oregon’s statutes
require can lend greater weight to an experienced officer’s
assessment that a visual recording violates those statutes.

         We note one final consideration. The magistrate reasonably could have inferred that, during a one-month period,
defendant shared over 300 files on a P2P network that is
“frequently used to trade digital files of child pornography.”
In State v. Martin, 

, 

 (1998), the
Supreme Court explained that a defendant’s repeated presence at a location known for continuous drug sales gave an
officer probable cause that the defendant’s late night, hand- to-hand transaction constituted distribution of a controlled
substance. As we later made clear, however, the context in
which that act occurs will shed light on its meaning. See
State v. Jacobs, 

, 

 (2003)
(explaining that a hand-to-hand transaction that occurred
in more benign circumstances did not give rise to probable
cause). In this case, defendant’s repeated use over a one-month period of a P2P network that is frequently employed
to trade digital files of child pornography sheds light on the
nature of the files he offered to share. Specifically, his frequent use of that network cuts against his argument that
the named files he shared depicted innocuous activity, and
it corroborates Kiurski’s assessment that the files he viewed
were child pornography that violated ORS 163.684 and ORS
163.686.

        We do not place undue weight on defendant’s use of
the BitTorrent network. Rather, it is simply another piece
of the puzzle that, considered in conjunction with the two
named files downloaded from a computer in defendant’s
home and Kiurski’s assessment that the downloaded files he
152                                                        State v. McNutt

viewed contained child pornography, established probable
cause that officers would find child pornography in violation
of ORS 163.684 and ORS 163.686 on a computer in defendant’s home. Indeed, this affidavit contains more evidence
that the files in defendant’s home contained child pornography than the affidavit that we found sufficient in State v.
Tropeano, 

, 

 (2010), rev den, 

 (2011).12
B.    Fourth Amendment
         Defendant argues that, even if Kiurski’s affidavit
was sufficient to establish probable cause under Article I,
section 9, the Fourth Amendment requires more than a
“bare conclusio[n]” that the files he viewed were child pornography. See United States v. Leon, 

, 

, 

, reh’g den, 

 (1984)
(stating that “bare conclusio[n]” of wrongdoing is insufficient
to establish probable cause). As explained above, one problem with defendant’s argument is the premise that underlies
it. Kiurski’s affidavit was not limited to his conclusion that
the files he viewed contained child pornography. The affidavit also sets out the graphic titles of two files downloaded
from a computer in defendant’s home and defendant’s persistent use for over a month of a network that is frequently
used to share child pornography. Beyond that, defendant’s
argument fails to recognize that, in light of Oregon’s more
specific prohibitions against visual recordings of sexually
explicit conduct involving a child, Kiurski’s assessment that
the files he viewed violated those prohibitions is entitled to
more weight than defendant perceives.
        In similar circumstances, the federal circuits have
held that comparable affidavits established probable cause
that suspect material was child pornography. See United
States v. Haymond, 

 (10th Cir), cert
den, 

 (2012) (upholding a magistrate’s probable
cause determination based on “filenames suggesting child

    12
       In Tropeano, we concluded that there was probable cause that the defendant possessed child pornography based on his prior conviction for that crime,
his subscription to a pornographic magazine from a country where child pornography was legal, his possession of a laptop, and his request to motel staff for 15
minutes of privacy. 

.
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pornography” and the agent’s assessment that, having
viewed the files, he “believed [they] contained child pornography”); Miknevich, 

 (graphic file name
plus the officer’s statement that the file’s SHA-1 value was
associated with “child pornography” established probable
cause).13 Indeed, in United States v. Grant, 

 (8th Cir 2007), cert den, 

 (2008), the Eighth
Circuit found probable cause based solely on a computer
repairman’s report that the defendant’s computer contained
child pornography.
          To be sure, the Third Circuit distinguished
Miknevich when the affidavit stated that two coworkers had
reported seeing the defendant “viewing child pornography”
at work, unlike this case where the magistrate reasonably
could have inferred that an experienced officer determined
that the files he viewed depicted sexually explicit conduct
involving a child. United States v. Pavulak, 

, 661-
62 (3d Cir 2012), cert den, 

 (2013). Similarly, the
Fourth Circuit has held that an affidavit stating that photographs depicted “nude children” is insufficient to establish
probable cause. United States v. Doyle, 

 (4th
Cir 2011). And as noted above, the First Circuit has held
that merely describing an image as a “lascivious exhibition” of a child’s genitals is insufficient to establish probable
cause. See Brunette, 

.
         The decisions in Miknevich and Haymond persuade
us that the magistrate in this case complied with the Fourth
Amendment when she found that the affidavit established
probable cause that a computer in defendant’s home contained child pornography in violation of ORS 163.684 and
ORS 163.686. We also find the decisions in Brunette, Doyle,
and Pavulak distinguishable. Even if those federal decisions

    13
       In upholding the magistrate’s probable cause determination, the Miknevich
court relied not only on the graphic file name but also on the detective’s statement
that he knew the file contained “child pornography” based on its SHA-1 or info-hash value. 

. However, as the court previously had observed, the
detective never explained how he knew that information, 

, nor did he
explain what he meant by the phrase “child pornography.” In this case, Kiurski’s
statement that the downloaded files he viewed contained child pornography was
based on his personal knowledge and thus provided greater support for finding
probable cause than the detective’s unexplained statement in Miknevich regarding the file’s SHA-1 value.
154                                              State v. McNutt

constituted binding precedent, they do not persuade us that
the magistrate erred in light of the statements in this affidavit. Cf. Eastern Oregon Mining Assoc. v. DEQ, 

, 320
& n 4, 

 (2019) (explaining that federal court of
appeals decisions interpreting federal law do not bind state
courts interpreting the same issue; only the United States
Supreme Court’s decisions on federal law are binding). We
accordingly conclude that the affidavit provided a substantial basis from which the magistrate could find probable
cause that the files on a computer in defendant’s home contained child pornography in violation of ORS 163.684 and
ORS 163.686. See Massachusetts v. Upton, 

, 732-
33, 

, 

 (1984) (explaining that,
under the Fourth Amendment, the question for a reviewing
court is “whether the evidence viewed as a whole provided
a ‘substantial basis’ for the Magistrate’s finding of probable
cause”).
                    II. PARTICULARITY
        Defendant argues, for the first time on appeal, that
the warrant was not sufficiently particular. Relying on the
Oregon Supreme Court’s decision in Mansor, he argues
that we can affirm the trial court’s ruling on an alternative ground. See Outdoor Media Dimensions Inc. v. State of
Oregon, 

, 

 (2001) (explaining
when a trial court’s ruling may be upheld on alternative
grounds). He contends:
       “Here, the search warrant failed to comply with the
   requirements set forth in Mansor … [because] it did not
   describe with particularity ‘what’ law enforcement sought
   to find and the temporal limitations on such search. The
   warrant also did not impose limits on the use of information disclosed in the examination; or limit the search to the
   information identified in the warrant.”
Although defendant asserts that the warrant was deficient
in those respects, his brief never explains why that is so,
and we conclude that the grounds he identifies are either not
well taken or do not provide a basis under Outdoor Media
Dimensions Inc., for upholding the trial court’s order.
        Defendant notes initially that the warrant did not
establish “what” law enforcement sought to find. However,
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the warrant and the affidavit, whether viewed individually
or collectively, made clear “what” the warrant authorized
officers to look for—evidence of visual recordings of sexually explicit conduct involving children. See Mansor, 

 (explaining that “a warrant must describe, with as
much specificity as is reasonably possible under the circumstances, what investigating officers believe will be found on
the electronic devices” and that “the ‘what’ is a description
of the information related to the alleged criminal conduct
which there is probable cause to believe will be found on
the computer”) (emphases in original). In that respect, this
case finds support in State v. Savath, 

,

, rev den, 

 (2019), where we explained
that the crime of creating and possessing child pornography
“served to greatly clarify and limit” the scope of the warrant.
         Defendant also argues that the warrant lacked a
temporal limit. The state responds that the affidavit identified that the investigation began in August 2016 and continued through January 2017. It contends that a reasonable
period encompassing those dates provides a sufficient temporal limitation on the scope of the search. The parties, however, did not argue below and the trial court did not find
whether the affidavit could be considered in determining the
scope of the search that the warrant permitted. See Mansor,

 (discussing when the affidavit may be considered in determining the scope of the warranted search).
Because the record developed in the trial court is not sufficient to permit us to resolve whether the affidavit may
be considered in determining the limits of the warranted
search, we conclude that defendant’s second alternative
ground for affirmance is not properly before us. See Outdoor
Media Dimensions Inc., 

 (explaining that
the absence of a developed record precludes reliance on an
alternative ground for affirmance).
         Finally, in asserting that the warrant failed to
impose a limit on the use of information that officers discovered during the course of executing the warrant, defendant appears either to misperceive what Mansor said or
to rely on information that is not part of the record before
us. Mansor explained that police officers may come across
information in searching a computer that falls outside the
156                                          State v. McNutt

permissible scope of the warranted search. 

.
Mansor observed that “the state should not be permitted
to use information obtained in a computer search if the
warrant did not authorize the search for that information,
unless some other warrant exception applies.” 

.
As Mansor makes clear, the limit that defendant seeks to
invoke is on the future use of evidence discovered during
the search of a computer that either goes beyond what the
warrant properly authorized or that fails to come within a
warrant exception.
         In this case, the record developed in the trial court
does not disclose what information the state uncovered in
executing the warrant. It follows that the record does not
disclose whether the state discovered evidence that fell outside the scope of the warrant, nor does it disclose whether,
if the state did discover such evidence, the evidence came
within an exception to the warrant requirement. Finally,
the record does not disclose whether the state has sought to
use such evidence, if it exists. Not only is the use issue that
defendant raises premature, but the record is not sufficiently
developed for us to consider the final ground for alternative
affirmance that defendant identifies. See Outdoor Media
Dimensions Inc., 

 (alternative grounds
for affirmance not available if the record is not sufficiently
developed).
          We conclude that the first alternative ground for
affirming the trial court’s pretrial order that defendant has
identified is not well taken and that the other two alternative grounds are not properly before us. We express no opinion on any challenges that defendant may properly raise to
the warrant when this case is back before the trial court. It
is sufficient to resolve this appeal to hold that the affidavit
established probable cause that evidence of visual recordings of sexually explicit conduct involving children would be
found on a computer in defendant’s home and that defendant
has not identified a viable alternative ground for upholding
the trial court’s pretrial order on appeal.
        Pretrial order reversed and remanded.