E.D.Wash.: Deliberate omission of officer’s knowledge of minor’s prior false allegations from affidavit undermined probable cause and required suppression

Defendant’s conversations with a minor on the internet did not provide probable cause to search his computer for child pornography. Moreover, the officer’s deliberate omission of his knowledge of the minor’s serious credibility issues and prior false allegations required suppression of the search. “The protections of the Fourth Amendment are not lessened based on the nature of the crime investigated.” United States v. Davis, 2011 U.S. Dist. LEXIS 57133 (E.D. Wash. May 27, 2011):

The protections of the Fourth Amendment are not lessened based on the nature of the crime investigated. United States v. Gourde, 440 F.3d 1065, 1075 (9th Cir. 2006) (“Given the current environment of increasing government surveillance and the long memories of computers, we must not let the nature of the alleged crime, child pornography, skew our analysis or make us “lax” in our duty to guard the privacy protected by the Fourth Amendment.”) see also United States v. Krupa, 633 F.3d 1148 (9th Cir. February 11, 2011) (Berzon, J. dissenting) (“I cannot help but think that had this case involved anything but child pornography, it would come out differently. I fear that understandable abhorrence of this particular crime can infect judicial judgment. We would do well to remember that the protections of the Fourth Amendment do not depend on the nature of the suspected criminal activity.”).

As stated by now Justice Sotomayor, courts are not insensitive to the need for law enforcement to have a certain amount of flexibility in conducting criminal investigations, however, requiring a sufficient showing of probable cause “will simply focus law enforcement efforts on those who can reasonably be suspected of possessing child pornography. If this proves to be a hindrance, it is one the Fourth Amendment demands.” United States v. Falso, 544 F.3d 110, 124 (2nd Cir. 2008) (internal citations and quotations omitted).

When considering the serious credibility concerns surrounding GT, which were deliberately or recklessly omitted by Detective Ashley, the court finds the information contained in the affidavit was insufficient to establish probable cause. The court finds that had the issuing state court judge been truthfully provided with the omitted information about GT, the judge would not have issued the warrant without requiring Detective Ashley to conduct further investigation and obtain corroborating information. Accordingly, the Motion to Suppress (ECF No. 30) must be, and is, GRANTED.

The court does not reach this conclusion lightly, nor does this decision minimize the very serious nature of the allegations against Davis. However, the Fourth Amendment commands that warrants be issued only “upon probable cause” and supported by truthful information (“supported by Oath or affirmation”), and the warrant in this case was not. The Ninth Circuit has stated: “In the absence of countervailing evidence to bolster the informant’s credibility or the reliability of the tip, an informant’s criminal past involving dishonesty is fatal to the reliability of the informant’s information, and his/her testimony cannot support probable cause.” United States v. Reeves, 210 F.3d 1041, 1045 (9th Cir. 2000)(emphasis added). Although GT did not have a criminal conviction for a crime of dishonesty, it is clear that she had made false statements to the police regarding the alleged sexual assault by Cody Little, and two years prior had made an “unfounded” allegation against her father. Detective Ashley conducted virtually no investigation to corroborate the statements of GT, and thus presented no countervailing evidence to bolster GT’s credibility or reliability. A judge reviewing all of these circumstances with knowledge of the serious credibility issues of GT, GT’s mother’s vague suspicion that “something” had occurred, the GT identified Myspace chats, and Davis’ dated criminal history would have had such serious questions as to the existence of probable cause that he would have found no substantial basis for concluding probable cause existed and would have required further investigation and inquiry prior to the issuance of a search warrant for the Defendant’s personal computer.