MA: Affidavit for SW for child porn on defendant’s computer failed to show probable cause; presence of adult porn has no bearing on presence of child porn

Affidavit for search warrant for child porn on defendant’s computer failed to show probable cause. Also, presence of adult porn on the computer says nothing about the presence of child porn, and the court refuses to make this inference at the request of the state. Commonwealth v. Kaupp, 453 Mass. 102, 899 N.E.2d 809 (January 16, 2009):

After reviewing Officer Maglio’s affidavit, we conclude that the affidavit, read as a whole and in a nontechnical manner, does not establish probable cause to believe that child pornography was located among the defendant’s private files. The portions of the affidavit suggesting that the defendant’s private files contained child pornography consisted of (1) the fact that both Joester and Sinister had a copy of the recently released movie Spiderman, suggesting that the movie had passed from one computer to another; (2) the fact that child pornography had been observed in Joester’s open share; and (3) Officer Maglio’s statement that the defendant “could not guarantee that there were not any child pornographic images stored in electronic format within his computer.” None of these facts, even when considered together, provided a “substantial basis” to believe that the defendant’s private files contained child pornography.

With respect to the presence of the Spiderman movie on both computers, the inference urged by the Commonwealth is simply too attenuated. The presence of Spiderman on both computers bears on probable cause only if it may reasonably be inferred that sharing an electronic copy of a commercial movie suggests an interest in sharing child pornography. Such an inference is not reasonable. The fact that the defendant could access child pornography does not advance the Commonwealth’s contention that the defendant copied child pornography from Joester onto his computer. …

The Commonwealth urges us to draw an adverse inference from the defendant’s admission that he had a personal collection of pornography on his computer. We decline to do so. The affidavit provides no basis to conclude that an interest in adult pornography (which, if not obscene, is constitutionally protected, see Miller v. California, 413 U.S. 15, 24-25, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]; Commonwealth v. Donahue, 358 Mass. 803, 263 N.E.2d 589 [1970]) is a basis to infer an interest in child pornography. See United States v. Falso, supra at 122 (rejecting inference between sexual abuse of minor and possession of child pornography where association was neither stated nor supported in affidavit).