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Interesting Sixth Circuit Decision on Probable Cause:
The Case: United States v. Hodson (6th Cir., Sept 19, 2008).

  The Panel: Judges Batchelder, Norris, and Gibbons.

  The Facts: Undercover agent posing as 12 year-old boy is exchanging instant messages online over AOL with someone using the screenname "WhopperDaddy." "WhopperDaddy" states to the boy that he "favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew." The suspect then "expressed his desire to perform oral sex" on the boy.

  The undercover agent subpoenas AOL, finds the address of the suspect based on the billing information on the credit card used for billing, and a few weeks later executes a warrant at the home for child pornography. The search uncovers imagines of child pornography, and the defendant is convicted of possessing the images.

  The Legal Issue: The defendant appeals, arguing that that the warrant affidavit lacks probable cause that child porn would be in the home, and that no reasonable officer could have a good faith belief that the warrant contained probable cause.

  The Holding: Conviction reversed, as there was no probable cause and no reasonable officer would think there was:
  It is beyond dispute that the warrant was defective for lack of probable cause — Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial. The question presently before us is whether any other consideration — specifically, the Leon good-faith exception — can overcome the defect and justify admission of the evidence anyway. For the reasons that follow, we conclude that it cannot.
  The question we address here is whether the faceless, nameless "reasonably well trained officer" in the field, upon looking at this warrant, would have realized that the search described (for evidence of the crime of child pornography) did not match the probable cause described (that evidence would be found of a different crime, namely, child molestation) and therefore the search was illegal, despite the magistrate's decision to the contrary. We conclude that any "reasonably well trained officer" would certainly have come to that realization if presented with this warrant.
  Otherwise stated, we conclude that it was unreasonable for the officer executing the warrant in this case to believe that probable cause existed to search Hodson's computers for child pornography based solely on a suspicion — albeit a suspicion triggered by Hodson's computer use — that Hodson had engaged in child molestation.
  My Take: When a law-and-order panel reverses a criminal conviction on procedural grounds, it's pretty tempting to say it must be right and to just leave it alone. But I'm actually not so sure the panel was correct.

  The court reversed the conviction on the ground that the affidavit established probable cause for one crime (child molestation) but asked for evidence of another crime (child pornography) without explaining the gap. But at least off the top of my head, I'm not aware of caselaw for the view that probable cause can be divided so sharply. The target did more than just admit to past child sex activities in the past. While chatting via AOL instant message, he "expressed interest" in performing sex an undercover agent who he thought was a 12 year old boy.

  Is it really such a stretch to think that someone who does such a thing would have child pornography images somewhere in the home? Based on reading a lot of these cases (and working on some when I was at DOJ), I would be rather surprised if such a person didn't collect images, actually. Even the Supreme Court has linked the two. See Osborne v. Ohio, 395 U.S. 103 n.7 (1990) ("Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.").

  I think it's fair to say the evidence presented wasn't strong enough to establish probable cause. But at least off the top of my head, I would think that there was enough there to satisfy the Leon good faith test. Or am I thinking of this the wrong way?
Matt_T:
Why would child pornography, as potential documentary evidence of child molestation, be outside the scope of probable cause to search for evidence of child molestation even if you take the court's rationale at face value?
10.24.2008 6:52pm
I'm a Guest Here Myself . . . .:
Orin,

I'm guessing that the agent failed to provide the link in the affidavit. It wouldn't take much. The agent would only need to say that based on his experience, or the agents who investigate these crimes regularly, individuals who engage in the chatting conduct often collect the contraband at issue. The same thing can be used to cure many staleness problems (these guys collect the material and don't get rid of it). The problem is that the agents don't always put the link in, and a prosecutor who just presents the warrant without a careful review risks a case like this. I think the judiciary should not be in the business of searching for a link that while plausible is not within the 4 corners of the affidavit.
10.24.2008 6:52pm
OrinKerr:
I'm A Guest,

Yes, that's the missing sentence. But I don't see why the absence of a standard stock sentence would magically take the affidavit outside Leon.

As for staleness, judges have taken judicial notice of it: Agents don't have to say it. I'm not sure why a different rules was applied here.
10.24.2008 6:56pm
Malthus:
This sure sounds like trying to decide who is a witch.

What in the hell is "child pornography" as opposed to "adult pornography"? I sure don't get it. What if the guy had naked photos of his entire family (they are nudists!)?

This whole Amerikan sex and pornography witch hunt is absurd.
10.24.2008 6:57pm
DG:
This is foolish. The guy admitted to a crime over the Internet, using his computer. The police could have gotten a warrant to search his computer based on that, looking for evidence of the crime he had already admitted to. They would have found the porn, incident to the other search. Why the cops wouldn't have known this, I dont know - sloppy work.
10.24.2008 6:58pm
NYNY (mail):
was it 3-0?
10.24.2008 6:58pm
OrinKerr:
What in the hell is "child pornography" as opposed to "adult pornography"? I sure don't get it.

The difference is between adults and children. Under the law, adults are 18 and over; children are under 18. You might want to read the statutes, as they will answer a lot of your questions like this.
10.24.2008 7:00pm
Cornellian (mail):
The Facts: Undercover agent posing as 12 year-old boy is exchanging instant messages online over AOL with someone using the screenname "WhopperDaddy." "WhopperDaddy" states to the boy that he "favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew." The suspect then "expressed his desire to perform oral sex" on the boy.

This is why I could never, ever practice criminal law. I just don't want to be around cases that have fact patterns like that.
10.24.2008 7:08pm
Anderson (mail):
I would have thought that propositioning a 12-year-old was a felony offense in itself.

And instead, we're wondering whether the guy has child porn images? Because THAT would be a crime?

Is asking a kid to go down on you, over the internets, not a federal crime? Or is it "just" a state crime? Or is the problem that it wasn't really a 12-year-old, he just thought it was?

(N.b. that I fully adhere to the theory that child porn, requiring the abuse of children for its production, is intrinisically inimical. I just think the priorities here are a bit off.)
10.24.2008 7:21pm
Angus:
Maybe here the concern is about broader precedent? Try to leave aside the innate revulsion about child molestation or pornography. Let's say the guy is hanging out in a chat room about the legalization of marijuana. One chatter mentions that he just bought some heat lamps at Home Depot, but doesn't specify what they are for. Can a law enforcement officer then apply for a warrant to search the man's house based on probable cause that the guy is growing marijuana in his home?

In other words, do we want officers leaping to conclusions about the crime commmitted without being reasonably certain about the crime itself?
10.24.2008 7:32pm
Anon Y. Mous:
From the facts stated in the post, I can see evidence of two crimes: having sex with his 7 year old nephew, and soliciting sex from the FBI agent posing as a 12 year old. Did the sex act he bragged about with the 7 year old really occur? If so, where and when? If you check the footnote in the link, you will find:

It was later determined that, although WhopperDaddy was most certainly defendant Michael Hodson, he actually has only one son (11 years old at the time) and no known nephews. In fact, despite some further investigation, no evidence was discovered that would prove that Hodson ever actually molested or sexually assaulted anyone.

Now, say the FBI wanted a search warrant that would search for further evidence of those two crimes, what specifically would they be looking for? That's why they had to pull the old switcheroo; child pornography gives them gives them something tangible to search for. Without that, they would have no reason to be searchimg his home.
10.24.2008 7:34pm
Thief (mail) (www):
Not only Osborne; the Supreme Court noticed the connection connection between child molestation and child pornography as early as 1982 in New York v. Ferber.
10.24.2008 7:38pm
Malthus:
[Comment deleted by OK and commenter banned. Malthus, I have no idea why you need to call me names, but I won't tolerate it at my blog.]
10.24.2008 7:39pm
Angus:
Including toys, games, drawings, fantasy writings,
diaries, souvenirs, sexual aids, manuals, letters, books about children, psychological books on pedophilia and ordinary photographs of children.
After reading the warrant. I was struck by this sentence. Is this boilerplate, or something odd. Under this, it would seem that having a copy of the novel "Lolita" would be considered child pornography, as would having normal pictures of child relatives. I also have the board game "Axis &Allies" and the dice game "Yahtzee." Should I be worried?
10.24.2008 7:42pm
Dave N (mail):
The court reversed the conviction on the ground that the affidavit established probable cause for one crime (child molestation) but asked for evidence of another crime (child pornography)
Reading the opinion, the Court pretty clearly found that there was no probable cause for the search--and then turned to the more difficult issue of whether the police acted in good faith pursuant to United States v. Leon.

The panel found that Leon did not apply, but also noted the circuit split with the 11th. Because of the circuit split, we may not have heard the last of "Whopperdaddy."

The decision makes it pretty clear that the police did no real investigation (see footnote 1) and if they actually beleived a child was being sexually abused, the police would have not waited another three months before getting a search warrant.

The Court also noted that the child pornography had actually been deleted and was in a portion of the harddrive inaccessible to "Whopperdaddy." That may have been part of the unstated calculus for this decision.

On another note, perhaps I am dense, but wouldn't there be a corpus delicti issue in the case if "Whopperdaddy" was prosecuted for molesting his nephew? "Whopperdaddy" has claimed to have committed a crime, but there is no evidence other than his admission that a crime occurred.

I certainly agree that his statements meets the level of "reasonable suspicion." Police can and should investigate whether "Whopperdaddy" actually has children, as he claims (he has one, not two as he described, though the one he has was 11 at the time), has a nephew, as he claims (no), and has actually sexually abused the nephew, as he claims (it is hard to sexually abuse a nephew who does not exist).
10.24.2008 7:48pm
Dave N (mail):
Anderson,

I think propositioning a 12-year old would likely be a crime. However, I am libertarian enough to be concerned about prosecuting someone like "Whopperdaddy" for merely talking to someone like this undercover officer, where "Whopperdaddy" could plausibly claim that he thought he was talking to another adult PRETENDING to be a 12 year old.

That is why the To Catch a Predator stings work. The perp has actually done more than just "talk," he has actually taken concrete steps (traveling to another location) to violate the law.
10.24.2008 7:54pm
Sean M:
Angus,

From my summer with the U.S. Attorney's office as a law student, here is my (admittedly not professional) explanation.

It is not that the listed items /are/ child pornography. It is, instead, that those types of items tend to show intent of the child pornography possessor.

Most defendants do not claim the images they possess aren't objectively child porn. Instead, they say that it was a mistake or that it was downloaded accidentally. Items like those listed tend to negate that argument.

"Well, Mr. Smith, if you say you got these images innocently, why is it that you have binders full of 'daddy daughter incest' fiction writing on your bookshelf?"

"Well, Mr. Jones, if this was innocent, why do you have clippings from the Sears catalog of the child underwear models?"

And so on. These items tend to prove intent, not that they are, by themselves, child porn.
10.24.2008 8:09pm
Dilan Esper (mail) (www):
I have to say, that while as a sociological matter there certainly are links between child porn and child molestation, that's not the same thing as saying that if you have evidence of the one you have PROBABLE cause to suspect the other. Probable cause, it seems to me, requires SOMETHING offense specific (or at least a mosaic of facts that points towards a specific offense), rather than just a general "some people who do X also do Y".

Otherwise, for instance, you could find probable cause for a search of a vehicle for drugs based on a speeding ticket, because people who transport drugs often speed. Or probable cause for a search of a home for a marijuana greenhouse or a meth lab based on theft of power from the power company, because one reason people steal power is to conceal drug cultivation or manufacture.

The point is, the Fourth Amendment requires some level of individualized suspicion to do a full search (we are not referring to a special type of search that is subject to a lower reasonable suspicion search-- this is a home search that needs a warrant and probable cause).

Now it is true they could have done a search for evidence of solicitation of children and perhaps found the porn. I suspect the reason why the officers went for this sort of warrant was to authorize a broader search that was more likely to find any porn. If that theory is correct, then they got what they deserved.
10.24.2008 8:10pm
PatHMV (mail) (www):
Cornellian, sadly this is hardly the worst of the barrel in terms of crimes that I've personally seen in my career as a prosecutor and pardon attorney for our state's governor. There's some sick, sick people out there.
10.24.2008 8:12pm
David Schwartz (mail):
"Well, Mr. Smith, if you say you got these images innocently, why is it that you have binders full of 'daddy daughter incest' fiction writing on your bookshelf?"

"Well, Mr. Jones, if this was innocent, why do you have clippings from the Sears catalog of the child underwear models?"

And so on. These items tend to prove intent, not that they are, by themselves, child porn.
How exactly do they prove intent? Maybe I'm being dense, but it seems to me that they strengthen both the guilty and innocent explanations equally.

For example, if I'm charged with stealing a book from a 7-11 and my defense is that I accidentally forgot to pay for it, how is evidence that I was at the 7-11 or that this is the kind of book I like to read relevant?

Or, let's put it another way. Suppose a stolen stereo is found in my house. My defense is that I like stereos, buy lots of stereos, and therefore am at high risk for unknowingly buying a stolen stereo, and that's exactly what happened. Your counter-evidence is that I like stereos and have lots of them? Huh?

Obviously, this evidence is just to prejudice the jury and make the guy seem like a scumbag. It doesn't refuse his claim in any way. In fact, it makes it more likely.

Someone who browses the Internet for porn involving young-looking kids, but who has no intent to intentionally download a pornographic picture of a person under the age of 18 is much more likely to accidentally download one than someone who doesn't.

And the chilling effect is damaging. Anyone who uses the Internet runs the risk of accidentally winding up with child pornography on their computer. If having the types of legal items you cited makes it more likely that nobody will believe their innocent explanation, people will be afraid to have those legal items.
10.24.2008 8:39pm
Oren:

Anyone who uses the Internet runs the risk of accidentally winding up with child pornography on their computer.

Don't try that defense in court dude.
10.24.2008 9:01pm
Wintermute (mail) (www):
Perhaps the real message is, set up a meeting with the perp based on what you already got instead of using it to justify an easier fishing trip for another offense.

Thanks for the heads up, Orin. It's been too long since I came over here.
10.24.2008 9:06pm
Dave N (mail):
Oren,

I think a) it depends on how many images you have and b) where the images are on the harddrive.

In this case, for example, the images were in a portion of the harddrive inaccessible to the perp. Thus, he has an argument that he at least attempted to dispose of the images--which is something that we encourage: if you have contraband, get rid of it.

If, on the other hand, the kiddie porn is in a file marked "Little Lolita" or "Nude Pics of Kids", then the defense becomes more problematic.

Additionally, 2 or 3 images might be innocent. Hundreds or thousands clearly is not.
10.24.2008 9:24pm
Sean M:
David S:

If you can see how it supports the guilty explanation, then that's all the Government needs to admit the evidence. It is not that any of these pieces of evidence, alone, will prove intent, but rather that it tends to make intent more likely than it was without the evidence. (To paraphrase Fed. R. Evid. 401).

The prosecutor's argument is going to be that common sense says that someone who has shown an unnatural interest in children (albeit not illegal interest) is more likely to have had intended to find and download child porn that someone who has not. The defense can rebut this argument and put its own spin on the facts with the argument you suggest. But that is the jury to figure out and weigh.
10.24.2008 9:27pm
Oren:
Dave, I still don't buy the "accidental" argument. It's pretty hard to accidentally get child porn, especially now that 2257 has made all legitimate porn subject to strict records-keeping. Incidentally, last I heard, the 6CA was supposed to review en banc the decision throwing out the DOJ's agressive redefinition of "provider" as to 2257 requirements. What happened with that?
10.24.2008 9:44pm
Dave N (mail):
Oren,

If Joe Perv is looking at porn sites (some of which are not American) and clicks through their links, I am guessing he can get to a very dark, creepy portion of the internet very quickly. If he then hits a link on one of those sites and a child porn image downloads (or worse, the site uses a child porn image as a popup) then it can certainly be accidental.

Will it happen to most or many or even some non-Pervs? Probably not--but the test still has to be whether he knowingly possessed child porn and what he did once he discovered he had it.
10.24.2008 9:59pm
jigmeister (mail):
The probable cause is for the computer based on the admissions in his conversation, assuming that he used the home computer. AOL would have supplied that information. Then the pornography would probably have been discovered on that computer and been admissible incident to the search. Sounds like a sloppy warrant.
10.24.2008 10:23pm
David Schwartz (mail):
Dave, I still don't buy the "accidental" argument. It's pretty hard to accidentally get child porn, especially now that 2257 has made all legitimate porn subject to strict records-keeping.


All you have to do is access your email account, and you get whatever information people choose to send you. I used to work for an Internet Service Provider and it was not unusual to hear the people who answered support emails complaining that people frequently mailed them copies of images of probable child pornography that they somehow felt we were the right people to complain to.

These laws are based on the normal assumption that one doesn't come into possession of something without intending to, and that one wouldn't take something without having at least some idea of what it is. These assumptions just don't apply on the Internet. Passive receivers of all kinds exist that take and 'possess' whatever information people choose to throw at them.

The prosecutor's argument is going to be that common sense says that someone who has shown an unnatural interest in children (albeit not illegal interest) is more likely to have had intended to find and download child porn that someone who has not.

But that's not the issue that's in dispute. The issue is this: given that one has downloaded child porn, it is more or less likely that one has done so accidentally given that one has shown an unnatural interest in children? Since that interest makes both the innocent and non-innocent explanations more likely in equal fashion, it is not relevant to the issue that is in dispute.

Analogously, I come into possession of a stolen stereo. I claim I didn't know it was stolen. How is evidence that I've bought other non-stolen stereos relevant? Yes, a person who buys non-stolen stereos is someone who like stereos, and hence more likely to buy a stolen one. But they're also more likely to buy a stolen one accidentally.

Of course, you are correct that it does make the guilty explanation more likely in the absence of any particular defense. And that means that it is relevant. But the fact that it isn't relevant to the only issue in dispute should be given heavy weight when considering its probative value over its prejudicial value.

To clarify, I'm not saying the evidence should or shouldn't be admitted. Just that it's not really probative to the disputed issue of fact, and that this should be weighed against it when considering its admissibility. It is, of course, highly prejudicial.
10.24.2008 11:10pm
David Schwartz (mail):
By the way, there is another significant way people come into possession of child pornography without intending to. A lot of file sharing programs allow people to both receive and send files from the same local storage area. With some (such as eDonkey) if you receive a file, you automatically offer that file.

Some people don't want files with names obviously indicative of child pornography on their computers. So they rename the files with names that suggest they are not child pornography. They may use boring names like names of tax preparation programs. They may use interesting names that suggest that it's adult porn or even adults who look young.

Other people searching through shared files then find these files under the innocent names and download them thinking they really are the content their name suggests.

I think it's going to be more and more common to find a pool of content that claims to be pornography involving 18 year olds who just look very young and that is actually a mixed bag of child pornography and young-looking adults, with even experts having a hard time figuring out which is which.

If you don't believe it's possible to get child pornography accidentally, take this challenge: Spend an hour searching for free pornography involving 18 year olds who look very young. This is perfectly legal, right? So there should be no reason for you not to take my challenge. Make sure you don't intend to download any child pornography and you should be fine. Perhaps you should have a police officer nearby when you do it to make sure you do it right.

There is no question that legal conduct is severely chilled. You may not think that conduct has value, but that's always where it starts.
10.24.2008 11:20pm
Fub:
Oren wrote at 10.24.2008 8:44pm:
Dave, I still don't buy the "accidental" argument. It's pretty hard to accidentally get child porn, especially now that 2257 has made all legitimate porn subject to strict records-keeping.
The "accidental" argument may be readily rebuttable by the facts in this case, but as a general proposition I think it is well supported by the facts of how current software, hardware, and teh intarweb operate.

Anybody who downloads email from a POP or IMAP server, and does not inspect each piece of received email for content and attachments, could have almost anything stored on their computer disk. Spammers regularly send malware and all manner of other less than legal junk to millions of email addresses.

The same is true of a web browser's cache, which will contain images and other files from each URL visited, until it is purged either automatically or intentionally. A naive user, or even a technically adept user, can be Rickrolled to illegal files by merely clicking an apparently legitimate link, entirely unaware of what he is about to encounter. And those files will exist in the browser cache until purged.

Furthermore, anyone using a Microsoft OS who naively tries to delete unwanted or offensive material by sending the file to the "recycle bin" has not actually removed the file from the disk. It may be deleted and overwritten by the OS in due course and the fullness of time, but without active operator intervention the file will remain on the disk until the OS decides to overwrite it.

So, a naive computer user, or even a conscientious and technically adept user in some cases, could easily have illegal material on his computer's disk quite accidentally, and be entirely unaware of it.
10.24.2008 11:38pm
Soronel Haetir (mail):
Oren,

I've also seen several cases where the defendant's computer had been hijacked and the trojan downloaded and shared all sorts of material without the D's knowledge. Not even the usual case of p2p where the user didn't really understand what they were getting into.
10.24.2008 11:40pm
Ron H:
Part of me is fascinated to read all of discussion on this matter, but I am actually chomping at the bit to post a response. All due deference to the more learned on here, I'm just a piddling defense attorney that's been recently barred.

I will refrain from drafting memoranda on this matter - not necessary. But I do believe the ruling was correctly, both on the probable cause issue and on the Leon good faith argument.

Just my two bits is all. I may have missed it in my utter eagerness to post on this matter, but I wish that the court had also reproduced the entirety of the affidavit in support of the search warrant rather than provided it as a recitation in the facts without direct quotes.
10.24.2008 11:43pm
jccamp (mail):
If the detectives had remained focused on the original conversations, they should have been able to establish PC to search for the text of the specific instant message(s), alleging child molestation via the suspect's own words, and the conspiracy re: the fictitious child corespondent. They could have then expanded the description of those items to be searched for to include any textual evidence of other unlawful contact between the suspect and underage children, and any evidence of records, written or photographic, of such unlawful contact, any IM or email accounts which might have been used, etc.

I'm not sure that there exists expert testimony sufficient to establish PC to link in every case child molestation and child pornography. It was a reach, and frankly, had the affidavit been written carefully, the investigators could have done the exact same search without departing from the four corners of the property to be searched and searched for.

All of which evades the issue of timeliness.

But I think the AC decision was correct, mainly because the cops had a common sense and imminently workable thrust for a warrant based on their set of facts. It sounds like the cops just got lazy and plugged in the wrong boilerplate.
10.24.2008 11:50pm
Monty:
On the matter of the warrant, as some of the previous posters mentioned, if the cops beleived what they alleged in the warrant, they should have been persuing him for those, not searching for child porn. Sloppy police work isn't going to get the sympothy of the court. I would hope the gov't waited for a case that casts the FBI in a more favorable light before seeking to overturn the decision.

As for images lurking on your hard drive, just clearing your cache or actually deleting a file doesn't actually remove the data from your disk. It is step beyond moving the data to your recycle bin (which is really just another folder), it marks the disk space as free. But the bits of data remain. The bits will stay there untill the space is used for some other file, or you use a specialized program to clean the space. If you don't, even a cheap program readily available from the internet can recover the files. I don't beleive any windows OS offers the tools to directly clear the bits of data from your disks.
10.25.2008 12:21am
Soronel Haetir (mail):
jccamp,

How is a recorded conversation recounting an entirely ficticious molestation (given that it was known the guy only had one child and no known nephews) enough to base a search for evidence of actual molestations?
10.25.2008 12:24am
Asher (mail):
Otherwise, for instance, you could find probable cause for a search of a vehicle for drugs based on a speeding ticket, because people who transport drugs often speed. Or probable cause for a search of a home for a marijuana greenhouse or a meth lab based on theft of power from the power company, because one reason people steal power is to conceal drug cultivation or manufacture.

I'm sympathetic to your argument, Dilan, but those examples sound a lot more attenuated to me. Only so many speeders do drugs, whereas I'd wager a guess that, say, 98% of men soliciting sex from kids online have child porn on their computers. And 98% is pretty probable.
10.25.2008 12:30am
MS (mail):
Orin,

The sentences in these child-porn cases are very long and getting longer, as you know, and sometimes the defendants are sympathetic (joe six packs, if you will). When I was clerking, my very conservative judge had started to sour on these child porn cases. I bet that's what's going on, even though this guy is plainly a scum bag.
10.25.2008 1:09am
Blindgambit7:
I think the dislike for all of these prosecutions could play a role. I also think trying to deter police laziness plays a role too. My very conservative judge is getting tired of seeing the same particular narcotics officers from the same narcotics task force up on a Leon claim nearly every term of court.

In all seriousness, we have had the same DEA agent appear three terms running; all Leon cases where the Government has conceded that the search warrants lack probable cause.
10.25.2008 2:09am
kiniyakki (mail):
There are long sentances for possession of child porn images, but what worth does a person who looks at child porn have to society? This sounds flip - but I mean it seriously. I don't see much worth in somebody like that - and what worth that person does have is outweighed by the harm they might cause.

I prefer to not blame the law enforcement. Bad apples aside, most are trying to do their jobs quickly and efficiently - everybody has a lot to do. Months and years later, defense attorneys are picking apart one of what is probably many cases the person worked on. And as Orin points out - smart legal minds differ on this. A read a quote once, something like "the trial of the accussed is secondary to the trial of the police." That is true here.

Finally, this case demonstrates the two edged sword of the "boilerplate probable cause." If police do use what is agreed as boilerplate - they get criticized b/c they say the same thing everytime - it cannot be true, or it cannot be serious. If they leave even one line of crucial boilerplate out - something like this happens.
10.25.2008 4:40am
Dilan Esper (mail) (www):
I'm sympathetic to your argument, Dilan, but those examples sound a lot more attenuated to me. Only so many speeders do drugs, whereas I'd wager a guess that, say, 98% of men soliciting sex from kids online have child porn on their computers. And 98% is pretty probable

Asher, given the number of molesters there are out there (isn't the statistic that something like 1/5 of all children get inappropriately touched?), and the relatively limited demand for child porn (certainly a serious problem, but probably less than 1 percent of all commercial pornography), I doubt that's true. Indeed, I bet that most of the time, molestors such as grandpa or uncle Billy or Joe the neighbor DOESN'T look at child porn.

In any event, I think it's better to draw a pretty bright line rule against this sort of thing. Unless one thing necessarily leads to the other, I think we need to at least require a mosaic before we find probable cause.
10.25.2008 5:16am
Asher (mail):
^^^

But Dilan, we're talking about a guy who's soliciting over the Internet, by way of instant messenger. Not molestors such as grandpa or Joe the neighbor. Of course, if an investigator, in the guise of a child, plays penpal with some grandpa, it would hardly be a fair inference to think he might have child porn on his possibly nonexistent computer. But if the investigator meets a guy trolling for child sex in an online chatroom, I think the chances of his having child porn on his computer are quite good.
10.25.2008 5:35am
zippypinhead:
I'm troubled at the Sixth Circuit's disregard for the Leon good faith exception in this case, particularly since this opinion has exacerbated a Circuit split. Strikes me as yet another of the many recent instances where the Sixth Circuit seems to be getting into untethered judicial legislating in criminal procedure cases.

Here, the main fault with the affidavit in support of the warrant apparently was omitting an averment linking up the defendant's online activities with the characteristics of persons likely to be in illegal possession of child pornography. As Professor Kerr and others others noted above, the Supreme Court itself has credited the linkage. And most remarkably, in footnote 4 of this opinion, even the Circuit panel here credits the linkage and basically explains what the missing averment needed to be. Or to put it differently, adding a single paragraph to the affidavit would likely have cured the lack of probable cause.

The Magistrate should have caught the missing paragraph, and rejected the warrant application pending a redraft of the affidavit. This is not a situation where the underlying facts couldn't reasonably meet a probable cause standard; it's merely one where the logical connection between fact A and fact B wasn't expressly stated. That is the sort of failing that generally should fall squarely within the good faith exception. Suppression is the wrong remedy.

Incidentally, Professor Kerr - your post is a nice example of concise case briefing. Law students should note how OK efficiently summarized the salient points and then analyzed the opinion's holding and reasoning (the only modification most students would want to make if they were assigned this opinion would be simply to paraphrase rather than block quote).
10.25.2008 11:25am
Clayton E. Cramer (mail) (www):

If Joe Perv is looking at porn sites (some of which are not American) and clicks through their links, I am guessing he can get to a very dark, creepy portion of the internet very quickly. If he then hits a link on one of those sites and a child porn image downloads (or worse, the site uses a child porn image as a popup) then it can certainly be accidental.
Not to mention, an image may be included in a larger website, but sizes so small that you don't notice it--yet the image still ends up on your hard disk. For example, go here, and there is a one pixel sized image of Sarah Palin there, which you can't see--but it nonetheless downloaded to your computer.

As I pointed out in that posting:

So the point is valid: it is conceivable that you could download illegal pictures and not even know it--but I notice that just about all the cases that I see for federal prosecution start out with credit card charges to download this evil trash--which somewhat takes it out of the, "I have no idea how that got there" category.

Now, if the federal government were prosecuting cases simply based on finding pictures on someone's computer, I would regard that they don't have a very strong case. There are a lot of ways that this can happen. The example above. Or because you have failed to adequately secure your computer system against viruses or attacks through your firewall. And oddly enough, it appears that the federal government knows well enough not to pursue cases this weak.
10.25.2008 2:10pm
pubdefender:
not the most relevant comment but, apropos of a few of the other remarks 'noticing' a link between child molestation and child porn, it may not be so clear. don't know whether actual 'hands on' molesters often/usually also use child porn, but there doesn't seem to be much of a link between possession of child porn and actual molestation. in fact, either ussc or doj released a study in the last couple of weeks or so to that effect, i think.
10.25.2008 3:27pm
jccamp (mail):
I'm afraid I'd agree with pubdefender. I'm not aware of any such studies, and I'd be skeptical about any study purporting the linkage as much more than say "more often than not." I'd be especially negative about any study going upstream, that is, trying to establish molestation patterns from possession of child porn.

S. Haetir -

"How is a recorded conversation recounting an entirely fictitious molestation (given that it was known the guy only had one child and no known nephews) enough to base a search for evidence of actual molestations?"


At the time of the warrant, all detectives knew for certain was that the suspect claimed to have molested at least one child, whom he claimed was a nephew. Police are certainly entitled to take a suspect at his word and search for evidence of a crime that the suspect claims to have committed. The search could include looking for the victim's true identity, for details of the molestation, for possible photos, other IM or email describing the molestation, all kinds of stuff, including the inevitable discovery of the child porn, without deviating from the search as authorized. Even if the detectives, at the time of the warrant, had been unable to determine if the suspect had a nephew, they certainly had PC to look for evidence of a child molestation.

Here's what the decision says in a footnote:
It was later determined that, although WhopperDaddy was most certainly defendant Michael Hodson, he actually has only one son (11 years old at the time) and no known nephews. In fact, despite some further investigation, no evidence was discovered that would prove that Hodson ever actually molested or sexually assaulted anyone.
10.25.2008 3:50pm
OrinKerr:
pubdefender,

I would love to see the study that you are referring to; the only study I know of on this is the Hernandez study that points in a very different direction.
10.25.2008 3:53pm
Soronel Haetir (mail):
jccamp ,

My reading of the opinion led me to believe that the one child/no nephew situation was discovered/known during the three month lag between the conversation and search.
10.25.2008 5:57pm
jccamp (mail):
I don't really know the timing either, but this quote from section II of the opinion lead me to believe the discovery was post-warrant:

"At this point, it is beyond dispute that the warrant was defective for lack of probable cause — Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography)."

It seems as though the appellate judges thought there was PC for a search re: a child molestation. It could be that even if the investigation indicated that the suspect had no genuine nephew, the term "nephew" in the vernacular could mean a non-blood relative. Or it could be that the investigation had not yet established the suspect's familial tree.

My point was just that there was plenty of PC available to the officers based on the suspect's own statements for molestation and maybe an attempt to commit another molestation, yet they decided to go for the porno, which was one of those "Huh?" moments. It sounds like someone went back to a previous warrant and just cut-and-pasted a bunch of text, which really didn't apply.
10.25.2008 6:44pm
TerrencePhilip:
If probable cause is indeed nothing more than a "fair probability" as Gates says, this decision seems quite incorrect. I also disagree with the rejection of the government's good-faith argument; the inevitable-discovery argument also seems pretty strong (and look at jccamp's comment, which suggests another valid ground for searching the images on this computer: namely, to find any evidence of the crimes the defendant had claimed he committed).

Just as disturbingly, the panel brags it is creating a circuit split with the Eleventh Circuit by utterly misrepresenting that court's ruling in the Haynes case. If I ever filed a brief misrepresenting a case to that degree, I'd be up at night in fear of sanctions, or at least being embarrassingly called out by the court.

Don't believe me? Compare the 6th Circuit's swipe:

"We recognize that this holding puts us in apparent conflict with United States v. Haynes, 160 F. App'x 940,944 (11th Cir. 2005), in which the Eleventh Circuit found that the officers' belief that probable cause of child molestation supported a search for child pornography was objectively reasonable, based on no more than "common sense.""



with what the 11th Circuit actually did and said, keeping in mind:

(1) Haynes was convicted of enticing a minor, not possessing child pornography, (2) the warrant sought info relative to this crime AND child porn, (3) the government was allowed to introduce the child porn at trial, (4) Haynes conceded on appeal there was PC to search for evidence of enticement but not for CP and thus the warrant was overbroad, and the court said:

"Agent Holland testified at the suppression hearing that "people interested in engaging in sex with a minor oftentimes have pictures of children." Agent Holland did not include this statement in his affidavit supporting the search warrant, and both he and the government conceded that he should have explained the connection in his affidavit. . . . According to the government, "[c]ommon sense dictates that there is a reasonable probability that an adult male who has expressed an interest in engaging in sexual activity with a minor . . . would possess child pornography or child erotica."
However, we need not decide whether the search warrant was overly broad because the evidence is admissible under the good-faith exception to the exclusionary rule. . . . The officers here clearly acted in reasonable reliance upon the warrant. Indeed, on appeal, Haynes does not even argue, much less show, that any of the exceptions to the good-faith doctrine applies. Consequently, the district court did not err in denying the suppression motion and admitting the child pornography evidence.

So this whole effort by the 6th Circuit seems exceedingly sloppy.
10.25.2008 6:44pm
ReaderY:
The 25-year-old North Carolina Supreme Court Case State v. Leslie Jean comes to mind, which held that posession of (adult) pornography was evidence of rape and (and could be admitted and argued as such at trial) on the ground that a person sufficiently depraved to be interested in the one was quite likely to commit the other.

I have consistently argued on this forum that morals laws are constitutional and that legislatures responsible to the people are entitled to put these sorts of assumptions into the statutory laws they make if they wish and that because of the broad powers the constitution gives legislatures to act as they think best for society, the Constitution does not and courts should not prevent them by substituting their own judgment.

Whether unelected judges should be in the business of embedding these sorts of assumptions into the constitution on their own initiative, however, is another matter. I believe the distinction important.

If one shouldn't automatically assume that people who possess pornography are inclined to rape as a matter of constitutional law, it's not clear that one should assume that those inclined to rape are thereby likely to possess pornography.
10.25.2008 10:54pm
David Schwartz (mail):
How is a recorded conversation recounting an entirely fictitious molestation (given that it was known the guy only had one child and no known nephews) enough to base a search for evidence of actual molestations?
It is certainly plausible to argue that there are very few reasons a person who make up a story in which they molest a child. The most obvious reason, given that he thought he was talking to another child, was that it was to normalize the molestation in the mind of the potential victim. In other words, he made up a fictitious molestation to entice a child for a later very real molestation.

Now, if he was preparing to entice and molest and child, which his conversation and false story of molestation makes likely, he would gather the 'tools of the trade'. These are things adults typically use to entice children. That could certainly include child pornography. The idea is that you show the child pictures and videos of other children engaging in sex with adults and looking happy to normalize the conduct and get the children to imitate what they see.

If that had been the argument made in the warrant, it would almost certainly pass the Leon test.
10.26.2008 6:24am
Anonymous31 (mail):

While chatting via AOL instant message, he "expressed interest" in performing sex an undercover agent who he thought was a 12 year old boy.


... and that state of mind was established how? Perhaps he was attracted to adults who pretend to be 12 years old.
10.26.2008 3:48pm
David Schwartz (mail):
... and that state of mind was established how? Perhaps he was attracted to adults who pretend to be 12 years old.
Nothing relevant to the case requires the level of certainty you seem to be demanding. If he had been charged with attempting to solicit a minor for sex and a conviction was expected with just this exchange as evidence, you'd have a point. But that's not what happened and nobody is arguing that that should have or could have happened.
10.26.2008 9:41pm
Matthew Jones (mail):
It seems to me that this was a case of sloppy police work. He already had the guy on the chat, already had the guy bragging about molesting kids and propositioning him, so why no follow-up?

One question, "Hey WhopperDaddy, got any pics of kids like me?" and suddenly there is all the probable cause in the world. Given the earlier conversation, it is likely that he would have admitted to and even tried to share his collection of child porn.
10.27.2008 2:12pm