CA4: Child sexual abuse allegations did not support CP affidavit, and GFE did not apply

Allegations of sexual abuse of a minor here did not support a search warrant for possession of child pornography. Also, the CI’s allegation was insufficient to show PC. The affidavit was, indeed, so devoid of evidence that the good faith exception should not apply. United States v. Doyle, 650 F.3d 460 (4th Cir. 2011):

There is, however, remarkably scant evidence in the affidavit (or Rouse’s investigation summary) to support a belief that Doyle in fact possessed child pornography. The bulk of the information supplied in the affidavit concerned allegations of sexual assault. But evidence of child molestation alone does not support probable cause to search for child pornography. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (“[I]t is beyond dispute that the warrant was defective for lack of probable cause-Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial.”); see also United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (“[A]lthough Falso’s crime allegedly involved the sexual abuse of a minor, it did not relate to child pornography. That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”) (citation omitted).

Here, the only mention in the warrant application regarding the presence of pornography was the statement that one of the alleged victims “disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” Doyle argues that the warrant lacked sufficient indicia of the credibility of Jones, the only informant who mentioned the presence of nude photographs. “In order to establish probable cause for the issuance of a search warrant, it is necessary to show that ‘given all the circumstances set forth in the affidavit[,] … including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Legg, 18 F.3d at 243 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

. . .

However, the credibility of Jones, who merely reported the allegations of a child informant, does little, if anything, to indicate probable cause to search Doyle’s home. Even if the step-uncle’s credibility were entirely unassailable, this would merely establish that he was telling the truth that his step-nephew made the allegations that Jones reported to Rouse. That, in itself, says nothing about the truth of those allegations. Importantly, Rouse testified that none of the alleged child victims made allegations to law enforcement that they were shown pornographic material. Indeed, there is no indication in the record that the children were even asked during the interview process about the presence of child pornography.

This may be the first time the Fourth Circuit found that a search was not saved by the good faith exception. I haven’t checked; I just don’t remember any.