Pedophilia and Probable Cause

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I’m getting ready to teach a session at the Superior Court Judges’ Conference about searches of computers and other electronic devices, so I’ve been reading all the computer search cases I can get my hands on. Recently, I stumbled on United States v. Crespo-Rios, __ F. Supp. 2d __, 2009 WL 1595463 (D. Puerto Rico June 5, 2009), which I found pretty remarkable.

The defendant engaged in sexually explicit online chats with a police officer posing as a 12-year-old, and sent her “obscene material” via webcam. Based on that, a judge issued a search warrant authorizing a search of the defendant’s computers for “any and all chat logs, child pornography, child erotica, information pertaining to sexual interest in children, [and] images depicting sexual contact between adults and minors.” The police executed the warrant and found child pornography, leading to federal charges against the defendant.

The defendant moved to suppress, admitting that there was probable cause to search for evidence of solicitation of a minor and for evidence of distributing obscene materials to a minor, but arguing that there was no probable cause to search for child pornography, and that the warrant was therefore overbroad. The court agreed, finding no “nexus” between solicitation of a minor and the possession of child pornography. Furthermore, although the judge determined that the warrant would have been valid without the child pornography language, and that a search under such a warrant would still have revealed the child pornography, the court nonetheless declined to apply the inevitable discovery doctrine. And finally, the court ruled that warrant was so lacking in probable cause that the good faith exception that exists under federal law did not apply.

So let me see if I have this straight: a person who has a sexual interest in children; who is actively soliciting children for sex; who is doing so via computer; who has adult pornography on his computer; and who is distributing the adult pornography to children is not reasonably likely to have child pornography on his computer? The court relied heavily on United States v. Hodson, 543 F.3d 286 (6th Cir. 2006), a case that involved slightly less jaw-dropping facts but that still reached what, to my mind, is a difficult conclusion to swallow: that there is no “link” or “nexus” between a pedophile who solicits children via computer and the possession of child pornography on that computer.

Of course, the one doesn’t follow inevitably from the other, but probable cause doesn’t mean conclusive proof. It is supposed to be a “practical, common-sense” standard, designed to assess whether there is a “fair probability” that evidence of a crime will be present. Illinois v. Gates, 462 U.S. 213 (1983). And it strikes me as perfectly “common sense” to conclude that a person who is using a computer for one illegal sexual purpose might well be using it for another, closely-related illegal sexual purpose.

As always, I welcome comments and criticisms. But I also have a specific request today. As I’ve been preparing my presentation for the judges, one thing that has jumped out at me is how few appellate cases we have in North Carolina involving searches of computers and other electronic devices. I’d appreciate your thoughts on why that’s the case, and whether there is a similar paucity of such cases in the trial courts.

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