CA1: An investigation of sex with a child doesn’t automatically translate into child porn on def’s computer; affidavit purely conclusory

Defendant was under investigation by Puerto Rico police for lewd acts with a minor. There was no suggestion of child pornography. Thus, it was conclusory for the judge issuing the search warrant for defendant’s computer to find nexus or probable cause to find child pornography on this record. The affidavit was purely conclusory, and did not even support the good faith exception. United States v. Cordero-Rosario, 2015 U.S. App. LEXIS 7365 (1st Cir. May 4, 2015):

To determine whether there was a substantial basis for finding a nexus, it is important to identify at the outset the crime under investigation. As the government rightly points out, Cordero was not under investigation for federal offenses involving the possession or production of child pornography at the time the affidavits were filed. He was instead under investigation for committing lewd acts against a minor in violation of Puerto Rico law. Thus, the question that matters with respect to the adequacy of the two affidavits is not (as Cordero at times contends in his briefs) whether the affidavits supported a search for evidence of the federal child pornography offense — which the affidavits did not purport to show. The question is whether the affidavits provided a “‘substantial basis’ for concluding that probable cause existed” that evidence of the crime of lewd and lascivious acts under Puerto Rico law would be found. Id. Even with our focus trained solely on that question, however, we conclude that neither affidavit provides enough supporting information on that issue.

. . .

According to the government, “because agents were … investigat[ing] … accusations of lewd and lascivious acts against a minor, there was a fair probability that any pornographic material found in Cordero-Rosario’s computer would constitute evidence of a crime.” Appellee Br. 18. Thus, the government contends, the affidavit did all that it needed to do.

We do not agree. Cordero was not being investigated for possession of illegal pornography. He was being investigated for committing certain lewd acts. The affidavit, however, supplies no basis for connecting the pornography that was the object of the search to that particular offense, which, in its nature, does not necessarily involve the use of pornography at all. In this regard, the affidavit does not state at any point that the alleged lewd and lascivious acts were carried out in a manner that involved the use of pornography, which is on its own legal to possess. In fact, the affidavit says nothing at all about why the existence of otherwise lawful pornography on a home desktop computer would be relevant to this particular criminal investigation. Nor does the affidavit state or even intimate that the “pornographic material” in question involved the injured minor, or any minor at all. Cf. United States v. Joubert, 778 F.3d 247, 253 (1st Cir. 2015) (upholding a search based on an affidavit that more closely tied the evidence sought to the alleged offense). And the government asks us, in assessing the sufficiency of the predicate for both warrants, to look only within their four corners and those of the attached affidavits.

As the government conceded at argument, moreover, the affidavit also does not state a fact that the District Court seems to have assumed: that the minor who is alleged to have been the victim of the crime told the police about the “pornographic material” on the computer. Such a statement in the affidavit would perhaps permit an inference that pornography had been used by the defendant in the minor’s presence in such a way as to be connected to the offense.4 But, again, the affidavit does not provide even that much of a link between the evidence identified and the crime being investigated. Instead, the affidavit simply states that Agent Ramos’s belief about what would be found in Cordero’s apartment is “in accordance with” his interview with the minor. But an investigating officer’s otherwise unsupported assertion that evidence of criminal activity will turn up at a given place could be “in accordance with” an interview even if the interviewee said nothing at all about the material that the officer asserts to be evidence of an offense.

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The affidavit, in other words, was conclusory as to all the key points concerning nexus. And such a conclusory affidavit is plainly not sufficient to establish the necessary probable cause. Gates, 462 U.S. at 239 (noting that issuing a warrant supported by “mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause” would be contrary to rights secured by the Fourth Amendment); Spinelli v. United States, 393 U.S. 410, 418, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) (“[A] simple assertion of police suspicion is not itself a sufficient basis for a magistrate’s finding of probable cause.”), abrogated on other grounds by Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527; Nathanson v. United States, 290 U.S. 41, 44-47, 54 S. Ct. 11, 78 L. Ed. 159 (1933) (affiant’s statement that “he has cause to suspect and does believe that” liquor illegally brought into the United States was located on certain premises was insufficient to support a finding of probable cause necessary for the issuance of warrant); Vigeant, 176 F.3d at 569 (warrant affidavit that contained “conclusory statements of the affiant that,” though they “might otherwise have helped create probable cause,” were “entirely without factual support” failed to support probable cause).