RI: One-sentence description of alleged CP didn’t show PC

The twelve word one-sentence description of defendant’s alleged child pornography was insufficient to show probable cause. The court declines the state’s invitation to adopt the good faith exception without adequate briefing. State v. Reisner, 2021 R.I. LEXIS 87 (June 30, 2021):

Moreover, the trial justice’s analysis of the affidavit’s twelve-word description of the video further demonstrates the affidavit’s insufficiency. In determining whether there was probable cause, the trial justice struggled to apply the Dost factors to the one-sentence description, acknowledging that the description provided no basis from which he could determine the focal point of the video or whether the setting was sexually suggestive. The trial justice was unable, based on the affidavit, to evaluate two out of the six Dost factors—factors key to identifying whether the video was child pornography or mere nudity. There is nothing manifestly lewd, sexual, or lascivious about a young girl removing her bathing suit on a beach. After reviewing the affidavit, we are drawn to the conclusion that only one Dost factor is demonstrated: nudity. The other factors are simply not present. Although the description need not tick off each and every Dost factor, and indeed the First Circuit in Amirault held that the “so-called ‘Dost factors’ are not exhaustive,” United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999), the law is clear that nudity alone, even of a child, is not enough to support a determination of probable cause. See, e.g., United States v. Doyle, 650 F.3d 460, 473 (4th Cir. 2011) (holding that the search warrant affidavit did not supply probable cause where it described photographs as merely “depicting ‘nude children'”).

Additionally, as set forth supra, the affidavit at issue in the case at bar did not allege that “HASH Value: 2aad88e182cc9c66ccd7ba15aa186ecfac39f370[,]” the hash value for the Jamtien.mpeg file, matched a hash value for confirmed child pornography. While the affidavit explained that “over time numerous files have been identified through a specific hash value as confirmed child pornography[,]” it did not specify whether Jamtien.mpeg was one of those files. Such a link within the affidavit may have eased the burden on the trial justice, obviating his attempt to painstakingly apply the Dost factors to a twelve-word description of mere nudity.

When an image or video involves sexual acts, a short description may be sufficient to establish probable cause. But when, as here, an image of a nude child is at issue, the question is far more difficult. Subtle differences may often separate a crime from a constitutionally protected image, such as an innocuous family photo or a work of art. In those situations, a judge must have the tools, via either the image itself, a thorough description, or a direct connection between the specific hash value and files containing child pornography, to independently assess whether there is probable cause to believe that an image of a child is pornographic. Neither the District Court judge who issued the warrant nor the trial justice had the benefit of those tools here. We therefore conclude that there was no substantial basis for determining that probable cause existed in this case based upon the language of the affidavit.

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