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.
. . .
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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)