CA2: Child porn warrant failed to show probable cause it would be found in defendant’s house, but the GFE saved it

Child pornography search warrant for defendant’s premises failed to show probable cause under Second Circuit precedent.

Absent any allegation that Falso accessed the cpfreedom.com website, and with little or no weight attaching to his prior conviction, the question remains whether other allegations in the affidavit, considered as a whole, support a finding of probable cause. Generalized allegations about: (1) the propensity of collectors of child pornography to intentionally maintain illegal images; (2) law enforcement’s ability to retrieve such images from a computer; and (3) the ability to view child pornography on the cpfreedom.com website, fail to establish the requisite nexus of illegal activity to Falso. Although Falso might hoard images of child pornography if he viewed and downloaded them, there is no allegation in the affidavit that he was in a position, or was otherwise inclined, to do so.

. . .

In the end, the district court’s finding of probable cause in Falso’s case required it to make at least two significant additional inferential leaps not required in Martin and like cases. First, in Falso’s case there is no allegation that he in fact gained access to the cpfreedom.com website, much less that he was a member or subscriber of any child-pornography site. Second, there are no allegations to support an inference that the sole or principal purpose of the cpfreedom.com website was the viewing and sharing of child pornography, much less that images of child pornography were downloadable from the site. Thus, it is only after making the inferences that (1) Falso in fact accessed a website (2) whose principal purpose was the viewing and sharing of child pornography, that the district court could draw the ultimate inference, upheld in Martin, that those who become members of a child-pornography website are likely to collect such images. Putting aside the dangers of Martin’s ultimate inference, see Martin, 426 F.3d at 81-83 (Pooler, J., dissenting); Coreas, 419 F.3d at 156-58, the dangers of coupling it with the inferences drawn in Falso’s case are exponential.

We are not insensitive to “the need for law enforcement to have a certain amount of latitude in conducting criminal investigations.” Martin, 426 F.3d at 76. But, as we explained in Coreas, requiring the government to gather “evidence particularized to the target of the search” before the warrant application is made “will simply focus law enforcement efforts on those who can reasonably be suspected of possessing child pornography.” Id. at 158 (emphasis added). If this proves to be a hindrance, it is one the Fourth Amendment demands.

[A website named C[hild]P[ornography]Freedom? What could that mean?]

However, the good faith exception saved this search warrant (on a 2-1 vote). The showing of probable cause was not lacking that it was not reasonable to rely on it. United States v. Falso, 544 F.3d 110 (2d Cir. 2008).

Dissent: “An executing officer can hardly claim good-faith reliance on a warrant issued by a judge who was mis-directed by the officer himself: the same principle explains why, at a magic show, the credulity of the audience does not cause the magician to fear that the lady has been sawn in half.”