Divided Court of Appeals Validates Search Warrant in Child Porn Case

The record showed that the FBI’s Safe Child Task Force received information from German authorities about an IP address from which 150 images of suspected child pornography had been accessed. In response to a subpoena, AT&T linked the IP address to an account belonging to the defendant. A police officer applied for a search warrant for the defendant’s residence to search for “any computers and electronic devices that could possibly contain child pornography.” In the affidavit in support of the warrant, the officer listed “possession of child pornography” as the offense, and described the computer as “an instrumentality for obtaining and storing child pornography.” The affidavit, however, contained no description of the suspected child pornography that was allegedly involved, nor was there any indication that the officer had seen the images.

On appeal, the defendant argued that the affidavit was insufficient to establish probable cause since there was no basis for the magistrate to conclude that the images downloaded were, in fact, child pornography.

This was an issue of first impression for the Court of Appeals. The Court stated that, ideally, the images would be described in the warrant affidavit. However, it noted that in several federal circuits (Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits) that had dealt with this issue, the courts held that the phrase “child pornography” itself may be a sufficient description because it “needs no expert training or experience to clarify [its] meaning.”

The Defendant, however, pointed out that the First and Third Circuits had ruled that the words “child pornography” were insufficient to establish probable cause and required that the magistrate either view the images or be given a detailed factual description of them.

Despite this, the majority stated that it was “persuaded by the reasoning of the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits as outlined above.”

In their dissenting opinion, Judges Barnes and McFadden stated that “a magistrate must be able to independently evaluate whether the contents of the alleged images meet the legal definition of child pornography.” Citing a standard promulgated by the Third Circuit, they suggested that this can be accomplished in one of three ways: (1) the magistrate can personally view the images; (2) the search warrant affidavit can provide a “sufficiently detailed description” of the images; or (3) the search warrant application can provide some other facts that tie the images’ contents to child pornography. They concluded that the failure to do so renders the search warrant affidavit insufficient to establish probable cause that the images in question were child pornography.