CA3: Affidavit as a whole showed PC for CP, but just barely

It is better to attach pictures or something to the affidavit for child pornography to show that the officer actually saw it to support the request for a search warrant. The affidavit for this search warrant did not clearly indicate that the officer saw the child pornography images, but the affidavit as a whole indicates that there was child pornography in defendant’s computer, and that was barely enough. United States v. Miknevich, 638 F.3d 178 (3d Cir. 2011):

Thus, our review of the affidavit leaves a clear impression: the state magistrate was presented with an affidavit that provided no factual details regarding the substance of the images in question. Although either the actual production of the images, or a sufficiently detailed description of them, satisfies the Fourth Amendment’s probable cause requirement, an insufficiently detailed or conclusory description cannot. See New York v. P.J. Video, 475 U.S. 868, 874, 106 S. Ct. 1610, 89 L. Ed. 2d 871 (1986). We believe, however, that even given the infirmities we highlighted, the affidavit still contained information sufficient to permit a finding of probable cause by the magistrate.

A.

It is clear that a magistrate can determine probable cause without seeing the images and/or viewing the contents of an illicit computer file. The Supreme Court has stated that:

[W]e have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. On the contrary, we think that a reasonably specific affidavit detailing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause to believe that the film is obscene, and whether a warrant authorizing the seizure of the film should issue.

P.J. Video, 475 U.S. at 874. We therefore reject any suggestion that a magistrate must review the contents of the actual files in question, or that a search warrant must include copies of the images giving rise to the request for a warrant. Although magistrates do not have to view these files, the question more pertinent here is whether the investigating officers must do so.

It can be problematic, to say the least, when a warrant application leaves one questioning whether anyone viewed the contents of the file in question. Nothing in the opinion we announce today should be taken as a rejection or relaxation of what we believe continues to be the best procedure for law enforcement officials to follow. It remains the better practice for an applicant seeking a warrant based on images of alleged child pornography to append the images or to provide a description of the images sufficient to enable the magistrate to determine independently whether probable cause exists. See, e.g., United States v. LaFortune, 520 F.3d 50, 56 (1st Cir. 2008). Here, however, the magistrate could have drawn a reasonable inference of the file’s contents based on its highly descriptive name and SHA1 value.