In a child pornography starting as a fake child enticement case: “Scott assumes that on appeal we will make an independent (de novo) assessment of probable cause, ignoring the state judge’s finding. We will not. The decision of the judge who issued the warrant receives ‘great deference’. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. McIntire, 516 F.3d 576, 577-79 (7th Cir. 2008). With the benefit of ‘great deference,’ this warrant is valid.” Is there a positive link between pedophila and possession of child pornography? Not positive, but it’s a reasonable inference. United States v. Scott, 2018 U.S. App. LEXIS 24027 (7th Cir. Aug. 24, 2018).
The litigants in this court profess certainty (at least, display certitude) about the relation between pedophilia and child pornography. Scott is confident that the two are unrelated. The United States is confident that one is a sign of the other. In support of these opposing views, each side offers—nothing but its own confidence. There is an empirical literature on the relation among different sex crimes, a literature that any expert witness would be obliged to consult and discuss, see Fed. R. Evid. 702, but the litigants have not based their positions on its findings. Indeed, at oral argument counsel for each side professed ignorance of this literature.
A substantial body of work concludes that people who collect child pornography are much more likely than the general population to be pedophiles. See, e.g., Michael C. Seto, James M. Cantor & Ray Blanchard, Child Pornography Offenses Are a Valid Diagnostic Indicator of Pedophilia, 115 J. Abnormal Psych. 610 (2006); Kelly M. Babchishin, R. Karl Hanson & Heather VanZuylen, Online Child Pornography Offenders are Different: A Meta-analysis of the Characteristics of Online and Offline Sex Offenders Against Children, 44 Archives of Sexual Behavior 45 (2015) (discussing other studies); United States Sentencing Commission, Federal Child Pornography Offenses 181 (2012) (reporting that 19% of child-pornography offenders in the study—that is, 310 of 1,654 persons—also had a conviction for a contact sex offense against a child).
Does correlation also run the other way? That is, if you start from a sample of pedophiles, how likely is it that they possess child pornography? The studies we cited above do not address that question. One that does, Janina Neutze, Michael C. Seto, Gerard A. Schaefer, Ingrid A. Mundt & Klaus M. Beier, Predictors of Child Pornography Offenses and Child Sexual Abuse in a Community Sample of Pedophiles and Hebephiles, 23 Sexual Abuse 212, 227 (2011), finds that a little more than half (50 of 95) of a sample of men who conceded sexually abusing children also reported owning and viewing child pornography. Whether self reports are reliable is open to question, and since the sample was drawn from Germany the definitions may not fit categories in the United States.
We think it likely that other empirical findings are available. And we may well have misunderstood those we located on our own. We do not cite these studies to show the validity of the warrant to search Scott’s home; indeed, we did not rely on the agent’s “training and experience” either. Our point, rather, is that inferences from the commission of one crime to the commission of another (e.g., from attempted child molestation to possessing child pornography) ought to be based on data, not on intuitions of the sort that led the lawyers to assert contradictory factual positions with no factual support. Data are available. Police and prosecutors would do well to consult them before making searches and arrests.
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)
