In CP case, dissenting opinion suggests computer search "not sufficiently connected ... to justify this serious intrusion"

In a recent Ohio case, the Court of Appeals of Ohio held that the search of a computer for evidence related to a rash of eggings that revealed child pornography was properly supported by probable cause (Ohio v. Castagnola, 2013-Ohio-1215 (Ohio Ct. App. 2013). However, a dissenting opinion argued the level of the intrusion made the search improper.

After more than twenty eggings in the small Ohio town of Twinsburg, police had finally found their suspects after viewing several people purchase a large number of eggs from a local grocery store. When confronted, the buyers told the officer that the eggs were for making a cake, but the officer confiscated the eggs anyway. The next day, the group sent the officer a cake.

An informant later showed text messages to the cops sent by one of the egg buyers, Mr. Castagnola, which showed his involvement in the crimes. One of the egging victims, the city's law director, had been hit on the night after he prosecuted Castagnola for the sale of alcohol to minors. Using a wire, the informant engaged Castagnola in conversations discussing the prior eggings. From the conversations, it appeared that Castagnola had used his computer to obtain the law director's home address. A warrant was obtained, and police searched Castagnola's computer for evidence related to the eggings. During the search of the computer, numerous images of child pornography were found, and he was prosecuted and convicted for "pandering sexually oriented matter involving a minor."

On appeal, Castagnola argued that the evidence from the computer should be suppressed because there was no probable cause. Specifically, his argument was that:

[the] affidavit failed to establish that probable cause existed for the seizure of his computer. Specifically, he argues that the fact that one form of technology (i.e. a text message) contains evidence of an individual's wrongdoing does not equate to the conclusion that another form of technology (i.e. a computer) will contain similar evidence.

However, because the detective's evidence showed that "Castagnola used the internet to locate the law director's personal residence,"  there was "a causal link between Mr. Castangola's alleged criminal activities" and the computer. He also argued that because he had only said that the address was not listed, and he had to find the address elsewhere, it was not proper for the detective to assume it was obtained online. The court held otherwise.

Castagnola also argued that the evidence was insufficient because the government did not prove that he knew the images existed as "many individuals used the computer." Because the password was really strong, and it seemed that the only ones who knew the password were Castagnola and his mother, the evidence was not insufficient to prove that he had downloaded the images.

A dissenting opinion argued that there was no probable cause for the computer search.

Even if I could agree that there was a "fair probability" that there would be a computer in the home that would verify that he had searched and obtained the law director's address, that single online search was not sufficiently connected to criminal activity to justify this serious intrusion into the privacy rights of the Castagnola family.... Mr. Castagnola's online search for the law director's address was not illegal activity, nor was it a fruit, contraband, or an instrumentality of any crime. It was a piece of "mere evidence" to connect Mr. Castagnola to the crimes committed at the law director's home....

The police had no reason to search the computers for anything other than verification that Mr. Castagnola had found the law director's address. No facts in the affidavit even suggested that any other evidence would be found on the computer to connect Mr. Castagnola to criminal activity.

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District court holds reasonable suspicion satisfies Jones, good faith exception requires binding precedent

In United States v. Robinson, No. S2-4:11CR00361 (E.D. Mo. 2012), the district court held that the good faith exception should not apply to GPS evidence where there was no binding precedent but also held that reasonable suspicion - rather than probable cause - is sufficient to satisfy the Supreme Court's decision in United States v. Jones.

Law enforcement had conducted surveillance on the defendant over a month and a half period. That, along with interviews they had conducted, gave them "reasonable suspicion," according to the district court judge. After the visual surveillance appeared to corroborate the interviews concerning the alleged fraudulent activity, a GPS device was installed on the defendant's car in early 2010 where it recorded data for nearly two months.

At the motion to suppress hearing, the parties made the normal arguments. The defendant argued the data should be suppressed because no warrant had been obtained, violating the Fourth Amendment according to Jones. The prosecution argued that the Davis good faith exception should apply and save the evidence from suppression. The court, interestingly, disagreed as to both.

Good Faith Exception
In its analysis of the good faith issue, the court first examined precedent as of the installation of the device, looking at Knotts (1983 beeper case), Garcia (Seventh Circuit case finding that GPS use was not a Fourth Amendment event), and Pineda-Moreno (Ninth Circuit case holding the same). Maynard (the DC Circuit case which held that it was a search and was ultimately affirmed by the Supreme Court in the restyled name of United States v. Jones) was handed down in August - nearly five months after the GPS device in the present case had stopped tracking the defendant.

The court acknowledged that most courts in the Seventh and Ninth Circuits apply the good faith exception where GPS has been used prior to Jones, but the more challenging issue is what happens outside of those circuits. Ultimately, the judge held that the Davis good faith rule should not apply here, finding that it only protects law enforcement action where there was binding precedent.

The language of Davis is narrow, and quite specific. In discussing whether the police were culpable, the majority in Davis noted "the officers' conduct was in strict compliance with then-binding Circuit law." Davis, at 2428-29. The opinion repeatedly references "binding" authority, see, e.g., id., at 2428, 2429, 2431, 2434; the majority did not reference "generally accepted authority." Indeed, the majority specifically noted that the situation might be different with "defendants in jurisdictions in which the question remains open."

Also discussed was the need for caution when dealing with technology. "[O]ne may not simply assume that prior case law authorizes conduct when it deals with different technology, is perhaps installed in a different fashion, or permits a different degree of intrusion," reasoned the court.

Reasonable Suspicion
Nonetheless, the court, relying on binding precedent in Marquez, found that the GPS evidence would not be suppressed because reasonable suspicion existed, making the search reasonable. In Marquez, the Eighth Circuit held that GPS installation on a car parked in a public place with reasonable suspicion for a reasonable period of time does not require a warrant.

The defendant argued that Marquez had been abrogated by the Supreme Court's decision in Jones. The court, however, disagreed as it determined that Jones did not specify what level of suspicion is necessary for use of a GPS device. As Marquez had done so and determined that reasonable suspicion was sufficient, that decision was still good law.

Thus, the motion to suppress was denied because reasonable suspicion existed.

Thanks to Jed, a loyal reader, for pointing out this case to us.

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Fifth Circuit to hear cell site data case Tuesday

Tomorrow, the Fifth Circuit will hold oral arguments for its much anticipated case on cell site location information. A magistrate judge denied the government's 2703(d) request for 60 days of location data, holding that a search warrant was needed. The district court judge agreed, and the government appealed.

The predominant issue in the case is whether CLSI is protected by the Stored Communications Act alone or also by the Fourth Amendment. If it's only the former, law enforcement need only show "specific and articulable facts," rather than the higher standard of probable cause required by the Fourth Amendment. Because, the government argues, the data is held by a third party, the Fourth Amendment does not apply.

The case is In Re: Application of the United States of America for Historical Cell Site Data (No. 11-20884).

Here's a list of court filings in the case:

• Government's Brief
• Professor Orin Kerr's Amicus (arguing the question is not ripe)
• Professor Susan Freiwald's Amicus
• EPIC's Amicus
• ACLU, EFF, CDT, and NACDL Amicus
• Government's Reply Brief

And here are a commentary links on the case:

• Magistrate Judge Smith's defense of his decision
• Professor Kerr - Here, here, here, here, here, and here
• Professor Freiwald

I'll post a link to the oral argument once the recording is available.

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Louisiana appeals court finds expectation of privacy for text messages

In State v. Bone, No. 12-KA-34 (La. Ct. App. 2012), the Louisiana Court of Appeal held that where a person is the "exclusive user of a cell phone," they are entitled to a reasonable expectation of privacy in text messages sent and received from the phone. However, the mistake in denying evidence suppression was harmless error, and the conviction was affirmed.

The defendant was a suspect in a murder case, and law enforcement obtained a subpoena duces tecum to receive a printout of text messages he had sent and received from his phone. Several of the messages appeared to show his involvement in the murder.

On appeal, the defendant argued that his motion to suppress the text messages should not have been denied. The state argued "it had reasonable grounds to obtain the requested information." The defendant's motion, however, argued the records were obtained "without a showing of probable cause as required under the Electronic Communications Privacy Act." (That's not the standard, of course.) The state argued that the defendant had no reasonable expectation of privacy because:

(1) defendant is not the subscriber or owner of the cell phone number at issue; (2) the privacy policies issued by Sprint Nextel specifically warn customers that information may for certain reasons be disclosed to authorities; and (3) defendant admits in the messages he sent from his phone that he did not have a subjective expectation of privacy in the messages.

The Court of Appeal first found that the "defendant did not have a reasonable expectation of privacy in the call detail record log associated with his phone number." On the other hand, the court held otherwise with regard to the text messages.

The issue before this Court is not whether the state is permitted to obtain the content of text messages sent on a defendant’s cell phone; rather, the question in this case is the standard that the state must meet in order to obtain such information. We find that here, where defendant was the exclusive user of the cell phone and was permitted to use the phone for personal purposes, he had a reasonable expectation of privacy in the text messages sent and received on the cell phone and further find that the collection and review of the content of defendant’s text messages sent and received by that phone constituted a search which required a showing of probable cause.

Thus, the court held that the motion to suppress was erroneously denied. The decision was, however, harmless error as the messages were "simply corroborative of other competent evidence introduced at trial." The trial court decision was affirmed.

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7th Circuit analyzes staleness in computer searches, holds the doctrine should apply "only in the exceptional case"

In United States v. Seiver, No. 11-3716 (7th Cir. 2012), in an opinion by Judge Posner, the Seventh Circuit analyzed the issue of staleness as it relates to a finding of probable cause to search a computer. Noting that "modern computer technology and the usual behavior of its users" support the position that the probable cause was not stale, the conviction was affirmed.

The case concerned a search warrant for child pornography on the defendant's computer. A 13-year-old girl had uploaded a pornographic video of herself to the Internet, and the defendant later discovered and downloaded that video. He then uploaded stills from the video to a photo-sharing site and sent an album link to the girl's stepmother who alerted police. Law enforcement tracked the IP address to the defendant, but there was a seven month gap between the upload and the search of his home.

On appeal, the defendant argued "that there was no reason to believe that seven months after he had uploaded child pornography there would still be evidence of the crime on his computer." Here's a summary of the points of Judge Posner's opinion (which in itself is a well-condensed opinion and difficult to summarize):

1. The traditional issue with staleness is whether the defendant was a collector of child pornography and was "likely to have 'retained' or 'maintained' rather than 'destroyed' the ... images." However, this concern alone "reflects a misunderstanding of computer technology."
2. Posner then goes into great detail in discussing deleted files, overwriting data, and file recovery.
3. "'Staleness' is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are 'not the type of evidence that  rapidly dissipates or degrades (internal citations omitted).'"
4. After a file has been deleted, "it is possible that the deleted file will no longer be recoverable" ... [or] the computer will have been sold or physically destroyed." Despite these possibilities and the time interval, however, "rarely will they be so probable as to destroy probable cause ... for probable cause is far short of certainty."
5. "[I]t appears that few consumers of child pornography ... understand well enough how their computer’s file system works to grasp the importance of wiping or overwriting their deleted pornographic files or encrypting them securely if they want to avoid leaving recoverable evidence ... after they've deleted it." Though software to perform these tasks is readily available, its use "is surprisingly rare."
6. "[A]fter a very long time, the likelihood drops to a level at which probable cause ... can no longer be established." However, "seven months is too short."
7. Possession requires knowing possession, and images being in slack space may prevent the knowledge element. However, that does not eliminate probable cause "unless the statute of limitations on possession ha[s] expired."
8. "Only in the exceptional case should" staleness be used to strike down a search of a computer for child pornography.
9. "[F]uture changes in computer technology may alter" the staleness inquiry, "and judges as well as law enforcers must be alert to that possibility as well.

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Facebook friends may give government access to view other's page, use doesn't violate Fourth Amendment

Though it is not likely to be news to readers of this blog, a federal trial court in New York has ruled that the government obtaining access to a defendant's Facebook page through one of his Facebook friend's cooperation does not violate the Fourth Amendment. United States v. Meregildo, No. 11 Cr. 576 (S.D.N.Y. 2012).

The defendant sought to suppress evidence, arguing against the method the government used to collect evidence to support a determination of probable cause. The government had gotten one of his Facebook friends to give them access to his Facebook profile.

"When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment," held the court. "Where Facebook privacy settings allow viewership of postings by 'friends,' the Government may access them through a cooperating witness who is a 'friend' without violating the Fourth Amendment."

The case has gotten a bit of attention, including stories from NY Post, Gigoam, Gizmodo.

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Third Circuit holds that three-year-old information is not stale in child pornography cases

In United States v. Prawdzik, 2012 U.S. App. LEXIS 10840 (3d Cir. 2012), the Third Circuit affirmed a motion to suppress over an argument that a search warrant contained stale information because it had been three years since the sexual abuse had occurred.

On appeal, the defendant argued that the information supporting the search warrant was stale because the sexual abuse had ended three years earlier. The appellate court acknowledged that information supporting child pornography crimes could potentially grow stale, but the facts of this case did not support such an argument.

The defendant had sexually abused the child over a period of five to six years and was known at the time of the search warrant to have transferred videos of the abuse to his computer. Because "pedophiles rarely, if ever, dispose of child pornography," it was likely that the videos would still be there. Additionally, the defendant had recently contacted the victim, his daughter, by phone. As such, "there was a 'substantial basis' for the magistrate judge to conclude that the affidavit established probable cause."

Age of information is a factor to be considered in determining probable cause - the nature of the crime and the evidence presented should also be considered. See, e.g., United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010).

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6th Circuit finds probable cause to search camera for evidence of underage drinking, one judge disagrees

The Sixth Circuit recently affirmed the denial of a motion to suppress in United States v. Westerlund, 2012 FED App. 0440N (6th Cir.). In the case, a 15-year-old boy was found drunk by his parents. He and his girlfriend claimed that Westerlund gave them alcohol. The boy's older brother (age 16) told police that he had also been given alcohol and marijuana by Westerlund before and that "a camera had been used at some of their parties and pictures had been taken but he thinks most of them were deleted."

On this information, law enforcement requested a search warrant to find "evidence relating to alcohol, marijuana, and devices used to photograph, record, and store images of minors without clothes or using alcohol or controlled substances." The district court found that no probable cause existed to search for child pornography, but a search for evidence of providing alcohol to minors was allowed including a search of digital cameras. Subsequently, photographs of unclothed minors and minors consuming alcohol were found. The Sixth Circuit affirmed the denial of the motion to suppress.

In a concurring opinion, Judge Cole agreed that probable cause existed to search for evidence of providing alcohol to minors, but suggested that it did not extend to searching cameras. Still, he concurred because of the "ever-widening Leon good-faith exception jurisprudence (an exception that will surely soon, if it has not already, swallow the rule)."

Cole argued that the only evidence suggesting that Westerlund had photographic evidence was a quote from the teenager saying that pictures had been taken but were deleted. The statement did not specify that Westerlund was the one who had taken them or that he was still in possession of them. Cole found this "disturbing" and suggested that it would allow a search warrant to be applied to nearly every person there because they likely had cameras on their cell phones.

[T]here would be a similarly "fair" probability that their devices would contain photos depicting criminal activity. To presume that there is a "fair probability" that photos of criminal activity would be found at Westerlund's home based on this statement alone requires an understanding of the word "fair" that I do not have.

 Judge Cole continued:

The district court latched onto the latter clause of W.J.'s statement, which referred to the photos being deleted, to note that photos may be resurrected from the trash folder on a computer, so their deletion should pose no bar to obtaining a search warrant. But such an argument puts the cart before the horse; it is not the photos' ability to be seized that is at issue, but whether the photos may be sought at all. Similarly, the majority opinion erroneously applies the "plain view" exception to justify the police officers' seizure of the photographs, while what is actually at issue is whether the police were able to look for any photos. As Westerlund makes clear, the photos that were immediately incriminating were not laying around in plain view; the government underscores this by noting that "[i]n the course of reviewing the pictures, other photographs were found that clearly and immediately appeared to be evidence of other crimes . . . ." Given that the officers had no authority to rifle through the photos in the first place, it cannot be reasonably stated that the incriminating photos were in plain view. To say otherwise would obviate any need for a search warrant to specifically list the items sought.

While Judge Cole's argument certainly brings up an important issue in the case, it does also seem reasonable that even without the testimony about pictures being taken, an officer would be able to search a camera for the evidence. The fact that alcohol was in Westerlund's house does not alone provide evidence of providing alcohol to teenagers. Something more was needed, and pictures that might have been taken are certainly a great source. Regardless, Cole's acknowledgment of the ever-expanding good faith rule is well-received - at least by this author.

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ACLU releases report on cell site data use by law enforcement

The American Civil Liberties Union recently released a report on the use of cell site data information by law enforcement agencies around the country. The group examined whether the surveyed agencies used CSLI, the standard (probable cause or less) by which they obtained it, and which used specific practices (such as getting the phone company to release a list of all phone numbers connected to a certain tower at a given time (called a "tower dump")).

Also included are the public records requests for each agency that has responded, easily accessible by map. Those documents reveal prices charged by phone companies for each type of request. According to documents obtained from the Tucson Police Department, the following are examples of charges:

• Tower Dump from Alltel - $500
• Tower Dump and Subscriber Information from T-Mobile - $150/tower/hr
• E911 Tracking from AT&T - $100 activation, $25/day

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Nebraska Supreme Court supresses CP evidence after law enforcement invented the probable cause

In State v. Sprunger, 283 Neb. 531 (2012), the Nebraska Supreme Court ordered suppression of evidence of child pornography obtained during an initial investigation for credit card fraud. The court found that law enforcement invented the child pornography suspicion themselves and committed "an obvious Fourth Amendment violation."

Law enforcement tracked unauthorized use of a debit card to Sprunger's IP address and went to his home for a knock-and-talk. They asked if they could search his computers, but he refused to consent, and they returned several months later with a warrant. Before they took his computers, he asked if he could delete some files, and the officers told him no. They asked if the computers contained child pornography, Sprunger denied that they did, and they told him he "that if there was no child pornography, ... [he] had nothing to worry about." Sprunger's lawyer contacted law enforcement a few days later asking "about the child pornography case the deputies were working on." Using Sprunger's request to delete files and the lawyer's call, a second warrant was obtained to search for child pornography. No evidence was recovered concerning the credit card crime, but child pornography was found. The trial judge found that no probable cause existed in the second search warrant, but that "the good faith exception saved the search."

The Nebraska Supreme Court also agreed that probable cause did not exist. Because the officers questioned Sprunger about child pornography and said he had nothing to worry about if child pornography was found, it was reasonable for his lawyer to have thought it was a child pornography investigation. That inquiry did not establish probable cause. Also, Sprunger's request to delete files does not raise enough suspicion to "amount to a fair probability that child pornography would be found."

With regard to good faith, the court found that the only evidence giving rise to probable cause for a search of child pornography "was of their own making," and the deputies should have been aware of such. "[A] reasonable officer would also know that telling a person that he had "nothing to worry about" if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography." As such, the search was "an obvious Fourth Amendment violation" and "to ignore such a blatant lack of probable cause would set a low bar for future police conduct."

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Pa. court discusses whether defendant has standing in another's e-mail account

In Commonwealth v. Hoppert, 39 A.3d 358 (Pa. Super. Ct. 2012), a Pennsylvania appellate court examined whether probable cause existed to obtain defendant's e-mails when the account had been closed three months earlier. The defendant argued the e-mails were stale, but the court found that "the information sought was not easily disposable and there was a fair probability that AOL had retained it."

Footnoted in the case was a discussion of whether the defendant had a reasonable expectation of privacy in the e-mail account which was in another person's name. The court compared it to a prior case determining that the defendant did not have a reasonable expectation of privacy in phone records from his girlfriend's cell phone. That case cited another which found that a defendant had no expectation of privacy in phone bills in his wife's name. The court didn't actually address standing but simply wanted to flag it for future reference.

This raises an interesting issue - proving ownership of Internet accounts can be a difficult task (in this case, however, it was an AOL e-mail account, making it a slightly clearer case). A person who creates an e-mail account under an alias could have ownership of that account. Many couples now create joint Facebook accounts (such as Jack-n-Jill Smith). The free aspect of many accounts presents another issue - how do you show it is yours and not just something you are using? Hoppert was using someone else's e-mail account, but did the e-mails belong to him because he wrote them, or were they property of the person whose name the account was in? Can we have e-mail accounts with joint property interests when e-mail providers only allow one name on the account?

Another issue with the court's discussion is whether it was proper to analogize e-mails with phone records as e-mails are not "records" (see content versus records distinction in 18 USCS § 2702). It's well-accepted that no expectation of privacy exists in phone and e-mail records (telephone numbers dialed or e-mail routing information). However, the actual content of those phone calls or e-mails may be a different story (certainly with phone calls and e-mails vary by jurisdiction). Thus, an absence of a reasonable expectation of privacy in records does not necessarily mean the same for content.

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Inventory search reveals evidence on digital camera; flash drive found under spare tire

The Court of Appeal of California has found an inventory search reasonable after police looked at images on a camera during the inventory. People v. Haraszewski, 203 Cal. App. 4th 924 (2012).

A police officer was headed to lock the gate at a public beach, but was notified that a car remained there. The officer was notified that a 911 call reported a man and boy at the nude beach that "did not seem right." As he was driving to the parking lot, the officer passed a car driven by a boy "about 11 or 12 years of age." The officer turned around and pulled the car over "on a suspected traffic violation and child endangerment." The man claimed he was giving the boy a driving lesson. A license check revealed the man was a registered sex offender.

The officer placed the man in the police car and began an inventory search of the vehicle, finding Vaseline, condoms, alcohol, a thumb drive, and a digital camera. A second thumb drive was also found under the spare tire in the trunk. A search of the camera revealed nude images of a boy on a beach. At the same time, the boy admitted photos had been taken at the beach.

On appeal, the defendant argued the camera was improperly searched, but the court found "there was a fair probability ... that evidence of a crime involving sexual molestation ... would be found in the digital camera and the thumb drives, and thus the warrantless viewings ... were supported by probable cause."

Flash Drive Technology
There was much more to the Haraszewski than I mentioned, but one of the points I wanted to make was that the defendant had hidden the thumb drive under the spare tire. Luckily the officer thought to check there, but it's not always so easy to identify.

For years, tech companies have been making it more and more difficult to identify flash drives. An American company is now producing cufflinks (shown right) that have two purposes - one acts as a 2GB flash drive, and the other creates a wi-fi hotspot (the pair is priced at $250).

Also, be sure to check out this former post on a flash drive that has a combination case and encryption.

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No probable cause to search home after sex offender conducts possible CP search at work

In United States v. Busby, the defendant's employer noticed that the computer assigned to him was performing searches such as "young-angels" and downloading torrents like "Pthc-Russia10Yo-11Yo-Little-Brother-And-Sister-2BoyGirls-Fucking-Just-Posing-Or-Naked-Pthc-R." 2011 U.S. Dist. LEXIS 145217 (N.D. Cal. 2011). The employer contacted the police and the laptop was seized. The following day, a search warrant was obtained for the defendant's residence because the laptop had also been used at the defendant's  home and contained images "of females in their mid-to-late-teens posing in a sexually suggestive manner." The defendant was also registered as a sex offender.

The court found that while the defendant may have had a subjective expectation of privacy in the laptop, he had signed a policy stating that "[u]sers have no explicit or implicit expectation of privacy" in the laptop. Thus, the employer's consent to search and seize the laptop was permissible. The search of the defendant's home, however, was unconstitutional and warranted suppression of evidence. The websites visited were only suspected of containing child pornography, but as the court pointed out, the photos in question may have been of young adults (18 or 19 years old) and not child pornography. Further, the fact that he was a registered sex offender does not help establish probable cause under these facts.

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Probable cause existed where teenager used images of CP to turn in his father

In United States v. Wilker, the court found that probable cause existed where the defendant's son took evidence of defendant's child pornography collection to the police. 2011 U.S. Dist. LEXIS 144264 (N.D. Iowa). The evidence included two images and two VCR tapes alleged as being from a hidden camera kept in the defendant's bathroom. Going by the testimony of the son and the son's friend, law enforcement obtained a warrant to search the defendant's house.

The defendant argued that probable cause would not have existed if law enforcement had disclosed information regarding the son's credibility to the magistrate. In the interview, the son "admitted that he wished to live with his mother instead of Defendant, that he and Defendant often argued and that, just days before [the son] reported Defendant to the police, Defendant had threatened to send Stephen to a 'boys home.'" The court found this to be a non-issue because the son "was a known informant and police could have held him accountable," and "he had 'an exceptionally strong basis of knowledge'" because he had personally discovered the images and tapes.

A second argument against probable cause concerned the fact that the son had told the officer he had not seen child pornography on the defendant's computer in at least a year, and thus probable cause did not "exist when [the] warrant [was] issued" with regard to the computer. However, because of the other evidence, it was reasonable to assume that the defendant "had used his computer in the past to store child pornography," and it should have been searched.

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No suppression for CP found during TSA search

In United States v. McCarty, the Hawaii federal district court reconsidered a child pornography case after it had been vacated and remanded from the Ninth Circuit. When the defendant's luggage was scanned at an airport, a mass was noticed around his laptop. Fearing explosives, the TSA employee opened the bag, pulled out an envelope of photos, and several photos fell out. By normal procedure, the agent must flip through the photos for explosives material. The photos ranged from newspaper clippings of children's underwear ads to images of nude children, 57 images total of minor children. None of the images were technically child pornography, but taken together, they looked far from innocent.

The Ninth Circuit had extensively analyzed the search under administrative search doctrine, noting that "[t]he TSA search scheme ... was focused solely on the discovery of threats to air travel safety," and "the scope of the permissible search ... was defined by the point at which the screener was convinced the bag posed no threat to airline safety." The court found that while the agent acted, in part, outside the scope of the administrative search (violating the defendant's Fourth Amendment rights), she never abandoned the search entirely. The decision was remanded for the trial court to decide whether probable cause existed for arrest and whether evidence suppression was needed.

On remand, the district court found that probable cause existed because of several of the images individually because of their explicit nature. Each "would be 'sufficient to warrant a prudent man to believe that [defendant] had committed'" an illegal act, and the collection further solidified that conclusion. Further, none of the evidence should be suppressed as the search was justified under the administrative search or inevitable discovery.

The original 2008 district court opinion is available here, the Ninth Circuit opinion here, and the new district court opinion is available at United States v. McCarty, 2011 U.S. Dist. LEXIS 143220 (D. Haw. 2011).

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Mass. court finds lack of probable cause in e-mail account with CP

The Appeals Court of Massachusetts struck down a search warrant for lack of probable cause in Commonwealth v. Finglas,  957 N.E.2d 1132  (2011).

Investigators had been contacted by America Online (AOL), reporting that the account of user "NATALY20" contained five images of child pornography. The images had been received from another e-mail account. NATALY20's account was tracked to the defendant. Law enforcement obtained a search warrant and executed it.

The problem, as the court noted, was that there was nothing to show that the images were sought by the defendant, but instead, may have been unsolicited. Further, there was no information to show whether the "images were accessed, viewed, and/or saved."

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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).

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Warrant in CP case may have violated Fourth Amendment

Imagine this set of facts: Law enforcement receives a tip of a website containing child pornography. Yahoo e-mail account qek9pj8z9ec@yahoo.com is the suspect, and the IP address used to create the account is provided. Detectives connect the account with Nicole Chism living in Washington (but the account registration says she lives in Chile). Her credit card was used to pay for hosting of the website. The IP addresses used to create and access the account were tracked to two other people - both living in Washington, but hundreds of miles from Chism's home. Based on this information, detectives believed they had probable cause to believe Nicole's husband committed the crime.

Nicole's husband, Todd, was arrested, and his home and office were searched for child pornography. He was never charged with a crime and subsequently argued that his Fourth Amendment rights were violated. As you might imagine, the Chisms' credit card had been stolen. No evidence connected Todd to the images except for the hosting payment. The affidavit also alleged that the credit card was used to purchase images of child pornography, but no evidence existed for that claim. Further, it never mentioned the other IP addresses, connected Todd to Nicole's credit card, or mentioned that the account was registered to Nicole in Chile.

As a result, the Ninth Circuit reversed the district court's grant of summary judgment, finding that a substantial showing of the officers' reckless or intentional disregard for the trust existed, their false statements and omissions were material, and the officers are not entitled to qualified immunity upon remand. The case is Chism v. Washington, 661 F.3d 380 (9th Cir. 2011).

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9th finds evidence of sexual abuse not related to CP

A search warrant was executed on Dougherty's home seeking evidence of child pornography. The only evidence demonstrated by law enforcement in its showing of probable cause was evidence of the suspect's attempted child molestation charge. The officer stated that in his experience, the two were connected. However, the Ninth Circuit found that probable cause did not exist. But because the issue is a circuit split, the officers were entitled to qualified immunity. The case is Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011).

The Second Circuit has held that crimes involving sexual abuse of children do not relate to child pornography. United States v. Falso, 544 F.3d 110 (2d Cir. 2008). The Sixth Circuit concurs. United States v. Hodson, 543 F.3d 286 (6th Cir. 2008). The Eighth Circuit, however, has found "[t]here is an intutive relationship between" such acts. United States v. Colbert, 605 F.3d 573 (8th Cir. 2010).

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