It is widely believed, and there are studies to support , that those offenders who engage in contact child molests collect child pornography and vice versa. Historically, search warrants have been prepared where officers spell out their opinion (based on their training and experience) that one who has an unnatural sexual interest in children often collects child pornography. The 9th Circuit Court of Appeals recently looked at that link and found that it does not rise to the level of probable cause.
FACTS
In U.S. v. Needham (9th Cir. 2013) 718 F.3d 1190, a five-year old boy was molested by the defendant in the restroom at a local mall in Orange, California. The victim identified the defendant to his mother. The officers did an excellent job of identifying the suspect using store purchase records, surveillance video and credit card records. They discovered that Needham was a sex registrant and had prior convictions for child molest and possessing child pornography.
Officers prepared an affidavit in support of a search warrant that detailed those facts. The officer also stated an opinion that Needham shared the characteristics of those with an unnatural sexual interest in children and that those people often collect, trade, buy, produce or collect child pornography. That opinion was based on the affiants training and experience, conversations with other law enforcement officers and the suspect’s history of possession of child pornography. How the officer learned the characteristics of those with a sexual interest in children was not set forth.
The items to be searched included all computers, electronic devices, data storage devices and other digital media, however, the affidavit did not include any facts to suggest that defendant used or possessed a computer or other electronic device.
Not surprisingly the defendant did, indeed, possess images and videos of child pornography. (The case wouldn’t be published in the legal books otherwise.)
Defendant alleged that the child pornography should have been suppressed because the affidavit lacked probable cause and that the good faith rule did not save the warrant.
HOLDING
The Ninth Circuit court of appeals held in an earlier case, Dougherty v. City of Covina 654 F.3d 892, that a search warrant lacks probable cause when one, there is no evidence of possession or attempted possession of child pornography, two, there is no evidence that the suspect used computers or electronics and three, the only evidence linking the suspect’s molest and possession of CP is the experience of the officer with nothing more.
The Court here upheld the search warrant because the search warrant in Needham was issued before the Court ruled on Dougherty and ruled a similar search warrant illegal. Had the Needham search warrant been issued after Dougherty, it likely would have been suppressed.
While the Court mentioned that the suspect had prior convictions for child molest and possession of CP made this case different from Dougherty, the take away from this case is that a child molest, with nothing more, will not provide probable cause to search for child pornography.
