Fourth Circuit examines image requirement for probable cause, subjective "obscenity"

In United States v. Wellman, the Fourth Circuit held that an image of child pornography was not required to show probable cause and that a requirement of "obscenity" is not subjective.  663 F.3d 224 (4th Cir. 2011).

West Virginia's ICAC identified an IP address using Gnutella that had shared five images determined to be child pornography according to their hash values. Police tracked the IP address to Wellman (who had also been convicted of sexual abuse of a child in 1987 and was not registered as a sex offender as required by law).

Wellman argued that the warrant was defective because it did not contain the alleged images or descriptions of them. The court declined to require that the search warrant include an image to be valid. "While the inclusion of such material certainly would aid in the probable cause determination, we do not impose a fixed requirement or a bright-line rule, because law enforcement officers legitimately may choose to include a variety of information when submitting a search warrant application."

The defendant also argued that the "minors engaged in sexually explicit conduct were obscene" requirement placed a subjective knowledge requirement on the word "obscene." The court readily struck this down, however.

RELATED CASE: The Fifth Circuit recently held that probable cause existed where the only pre-search evidence of child pornography was knowledge of "partially nude" images of children. From that, an investigator testified that "people who collect child pornography collect child erotica as well." United States v. Gove, 2011 U.S. App. LEXIS 24175 (5th Cir. 2011).