W.D.Ky.: Ex-wife’s conclusory statement was insufficient to show PC for child porn, and GFE didn’t apply

The affidavit alleging there was child pornography on defendant’s computer was based on almost nonexistent inferences and a conclusory statement from his ex-wife that was adopted by the officer. The court finds that probable cause was lacking and the good faith exception was insufficient to support it because probable cause was wholly lacking and it could not be relied on. United States v. Hicks, 2012 U.S. Dist. LEXIS 137189 (W.D. Ky. September 25, 2012)*:

Viewed through the lens of Gates, Hicks’ ex-wife’s statement raises questions as to both veracity and basis of knowledge. The affidavit contains no statement or explanation why Detective Carter found Ms. Hicks’ statement credible or why he believed the information she provided was reliable. Cf. United States v. Smith, 182 F.3d 473 (6th Cir. 1999) (finding an affiant’s statement clearly indicating why an informant was credible satisfied the court’s inquiry into the informant’s reliability); United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000) (finding that it may be sufficient to establish probable cause if police can independently corroborate information received from an informant whose reliability is not established). The affidavit is also devoid of any statement indicating the basis for Ms. Hicks’ knowledge or any information that would corroborate her statement. In short, the affidavit provides no more than an uncorroborated, baseless suggestion by Hicks’ ex-wife that “it would be reasonable to believe” Hicks’ computer had been exposed to child pornography.

The conclusion not to accord significant weight to Ms. Hicks’ tip is consistent with case law in this Circuit. For example, in United States v. McNally, the Sixth Circuit found an informant established a basis for her knowledge regarding information provided to police where she “acquired the information firsthand based on her personal relationship with the defendant and provided substantial and credible detail”. 327 F. App’x at 557. Specifically, the informant in McNally had been romantically involved with the defendant for six months immediately prior; had spent considerable time at his residence; had personally seen a pornography file folder title “child kiddie” on his computer (which was the only folder he had locked); and had observed in his possession “numerous photographs of multiple underage females posing in sexual situations, including fondling each other’s breasts and genitals.” Id. at 555, 557. Further, police independently corroborated much of the information the informant provided. Id. at 557. Therefore, despite that the informant’s credibility had not been established, the court found that under the totality of the circumstances, the basis for the informant’s knowledge together with independent police corroboration was sufficient to establish probable cause. Id. at 558. Additionally, under these circumstances, the court found that even if the affidavit lacked probable cause, it was not “so lacking in indicia of probable cause” to defeat the Leon’s good-faith exception. Id. (referencing Leon, 468 U.S. at 897).

Detective Carter’s affidavit offers no connection with or to Hicks’ laptop computer other than Ms. Hicks’ statement. The affidavit offers no information establishing the reliability of Ms. Hick’s suggestions or on what knowledge that suggestion was based. In short, Detective Carter’s affidavit fails to indicate “why evidence of illegal activity will be found ‘in a particular place'”–Hicks’ laptop computer–as well as to establish a “nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).