E.D.Va.: Fact of a sex crime against a child does not, without more, mean there is CP on def’s computer

Mere evidence of forcible sodomy on a child does not ipso facto mean that there is probable cause to believe that there will be child pornography on the defendant’s computer, too. Only one circuit would make that inferential link (CA8), but not this one. Moreover, the utter lack of probable cause denies resort to the good faith exception. United States v. Church, 2016 U.S. Dist. LEXIS 144422 (E.D. Va. Oct. 17, 2016), same result on reconsideration, 2017 U.S. Dist. LEXIS 8431 (E.D. Va. Jan. 20, 2017):

Notwithstanding the deference that is owed to the magistrate’s determination, some logical inferences, without more, cannot support a finding of probable cause as a matter of law. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (rejecting the inference that probable cause to search a person could be based on the individual’s “mere propinquity” to another person or location suspected of criminal activity). In United States v. Doyle, 650 F.3d 460 (4th Cir. 2011), the Fourth Circuit determined that one such impermissible inference involved the link between child pornography and child molestation. Reviewing a warrant based on the link between the two crimes, the Doyle Court was unequivocal in its conclusion that “evidence of child molestation alone does not support probable cause to search for child pornography.” Id. at 472.

In so holding, the Fourth Circuit joined, with approval, decisions from the Second and Sixth Circuits that had addressed the same issue. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (“It is beyond dispute that the warrant was defective …. Detective[s] established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography).”); United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (“That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”). Moreover, while the Fourth Circuit has not revisited the issue since Doyle, other circuits have joined it in what is now the clear majority view on this issue. See Virgin Islands v. John, 654 F.3d 412, 420, 55 V.I. 1324 (3d Cir. 2011); Dougherty v. City of Covina, 654 F.3d 892, 898 (9th Cir. 2011). So far, only the Eighth Circuit appears to have come to a different conclusion. See United States v. Colbert, 605 F.3d 573, 579 (8th Cir. 2010) (holding that the “intuitive link” between child molestation and child pornography was enough to allow evidence of one to sustain a warrant for the other).

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DISCUSSION

A. Validity of the Warrant

Although probable cause had been established to search for evidence of Forcible Sodomy contained within Church’s cellular telephone, Hiner’s affidavit provided no ground to believe that evidence of either Forcible Sodomy or Child Pornography would be found on Church’s tablet, laptop computer, or other electronic devices. Because the affidavit did not provide even a substantial basis for concluding that probable cause existed to seize and search Church’s tablet and laptop computer, the warrant authorizing their search and seizure cannot be sustained.

. . .

The warrant in this case was clearly designed to search for evidence of child pornography, but was justified only by evidence of child molestation. Our circuit, in Doyle, unequivocally rejects this precept, and it is binding precedent on this Court. Therefore, the warrant issued on November 4, 2015 lacked a substantial basis for its probable cause determination, and thus is invalid.

B. The Good Faith Exception to the Warrant Requirement

For many of the reasons previously outlined above, the good-faith exception to the warrant requirement cannot apply in this case. The warrant to search the Church residence was issued without any tangible evidence connecting Church to the crime of child pornography, in direct contradiction to binding Fourth Circuit precedent. Under such circumstances, “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002). Therefore the good-faith exception does not apply.

Issued in 2011, the Doyle decision made it clear that a search warrant for evidence of child pornography cannot be based solely on evidence of child molestation. Doyle 650 F.3d at 472. In doing so, the Doyle court declined to apply the good-faith exception even though it was the first time that Court had confronted the issue, ruling that the additional evidence of child pornography presented in the affidavit (hearsay evidence that one victim was shown pictures of “nude children”) was “completely devoid” of the information necessary to assess staleness. Id. at 474. Doyle had been the clearly established law of the Fourth Circuit for four years by the time the search warrant in this case was issued. It is one thing to expand Leon’s good faith exception to situations where police act in “objectively reasonable reliance on binding appellate precedent.” See Davis v. United States, 564 U.S. 229, 249-50, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). It is another proposition entirely to extend safe harbor to circumstances where the warrant is issued in direct contradiction to that precedent.