In United States v. Johnson, --- F.4th ---, No. 24-6689 (9th Cir. 2026), the Court affirmed Duane Lee Johnsen’s conviction for receiving child pornography, in violation of 18 U.S.C. § 2252, and accessing and possessing child pornography, in violation of 18 U.S.C. § 2252A.
Defendant Duane Lee Johnsen was arrested after law enforcement executed a search warrant for his home and discovered copious amounts of child pornography stored on his electronic devices. Johnsen was convicted under 18 U.S.C. § 2252 for receiving child pornography, as well as under 18 U.S.C. § 2252A for accessing and possessing child pornography. On appeal, he challenges the district court’s denial of three motions: (1) his motion to suppress evidence seized from his residence; (2) his motion to dismiss the indictment; and (3) his motion for judgment of acquittal. We affirm.The warrant to search Johnsen’s property was issued based in part on evidence that Johnsen possessed files with hash values matching known child pornography. Johnsen contends that because officers had not downloaded and viewed any of the suspect files from his computer, it was improper for the magistrate judge to rely on the hash matches to find probable cause. We disagree. If we were to require visual confirmation of the contents of Johnsen’s files to establish probable cause, it would effectively demand certainty that he possessed child pornography, rather than a fair probability.A hash match between a suspect’s files and known child pornography amply supports the reasonable inference that such material is present on the suspect’s devices, even if agents have not downloaded and viewed the suspect file. Hash matching is widely viewed as a reliable and scientifically sound means of identifying duplicates of a file.Though a hash match does not guarantee that the file on the suspect’s device contains child pornography, the standard for probable cause is a “fair probability,” not absolute certainty.Moreover, the hash matches were bolstered by substantial additional evidence that independently supported the magistrate judge’s finding of probable cause. Notably, the warrant application listed the filenames of files Johnsen’s eMule account was offering to share, all of which were strongly indicative of explicit sexual content involving minors. “[F]ilenames themselves, apart from their content” can give the magistrate judge “probable cause to issue a search warrant.”This cumulative evidence was more than sufficient to support a probable cause finding that Johnsen possessed child pornography.Johnsen’s remaining two arguments—that law enforcement’s review of his public eMule files violated his Fourth Amendment rights as well as the Wiretap Act—are both squarely foreclosed by our precedents.Individuals do not have a reasonable expectation of privacy in electronic files they offer for public download, and accessing files made available on a file-sharing platform does not constitute a search.Law enforcement’s pre-warrant review of Johnsen’s files was limited to the materials that Johnsen made publicly available for download on the eMule filesharing platform. Their warrantless access to those public files did not violate Johnsen’s Fourth Amendment rights.For this same reason, Johnsen’s argument that the “presearch” violated the Wiretap Act fails. Standing to challenge wiretaps is limited “to persons whose Fourth Amendment rights were violated by the interception.”Furthermore, Johnsen’s saved files do not fall within the scope of the Wiretap Act. The act bars the unauthorized, intentional “interception” of “electronic communications.” 18 U.S.C. § 2511. “[T]o be ‘intercepted’ in violation of the Wiretap Act, [a communication] must be acquired during transmission, not while it is in electronic storage.”Johnsen [also] argues that the district court erred in denying his motion to dismiss the indictment because he was prejudiced when officers forensically analyzed his devices without his counsel present, and because he was wrongfully targeted for selective prosecution due to his prior conviction for offenses against children.Johnsen claims that his right to counsel was violated and he suffered prejudice when agents did not honor his request for an attorney to be present during the forensic analysis of his devices. But the right to counsel extends only to “critical stages” of the prosecution, and the forensic analysis of Johnsen’s devices was not a “critical stage.”Because the forensic analysis of Johnsen’s devices was not a critical stage of the prosecution, Johnsen had no right to an attorney’s presence during it.Johnsen claims that the Government was improperly motivated to prosecute him due to his prior convictions for crimes against children and that it pursued him while ignoring other similarly situated individuals.Johnsen shows neither similarly situated others, nor impermissible prosecutorial motive. He offers nothing more than his asserted belief that the Government has not pursued or prosecuted other eMule users who were involved in either sending or receiving his files. Without more, Johnsen cannot establish that there are similarly situated individuals whom the Government chose to ignore. He also fails to identify an impermissible motive, as “sex offenders do not comprise a suspect class.”
