{"id":1155,"date":"2007-07-17T06:51:40","date_gmt":"2007-07-16T07:49:28","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-07-16T06:49:28","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1155","title":{"rendered":"CA8: Computer tech’s observations conclusorily reported in an affidavit for a warrant for child porn was sufficient"},"content":{"rendered":"

A computer repair technician was recognized in a 2-1 decision by the Eighth Circuit to be able to distinguish between child porn and non-child porn [sub silentio recognizing “I know it when I see it.”]. The computer tech was a neutral third party to report for inclusion in an affidavit. United States v. Grant<\/a>, 06-3649 (8th Cir. July 13, 2007). The affidavit stated in part:<\/p>\n

Eng summarized the information he had gathered from Sundstrom, specifically pointing out that Sundstrom had told him that “Lewis had been a Computer technician for a long time and ha[d] worked on several home computer[s]” and that Lewis had “found pornography on several computers but believe[d] that what he found on the [Grants’] computer to be child pornography.”<\/p><\/blockquote>\n

The court found:<\/p>\n

We agree with the District Court that Lewis, by virtue of his experience as a computer repairman, was “uniquely able, and properly motivated, to distinguish between child pornography and lawful images.” Mem. & Order, May 24, 2006, at 20. Sundstrom emphasized to Eng that the images Lewis stated that he had observed on the Grants’ computer were disturbing and unlike any pornographic images Lewis had observed on computers in the past. Lewis distinguished between “adult” and “child” pornography and specifically characterized the images on the Grants’ computer as child pornography. See e.g., United States v. Koelling<\/em>, 992 F.2d 817, 822 (8th Cir. 1993) (“Most minors look like minors and most adults look like adults ….”). Eng’s affidavit in support of the search warrant related each of these facts to Judge Turnbull, and we conclude that the affidavit was sufficient to establish probable cause for the issuance of the search warrant.<\/p><\/blockquote>\n

Thus, the affidavit was not bare bones and the good faith exception would save it anyway.<\/p>\n

Judge Arnold in dissent found the computer tech’s information merely conclusory and insufficient to support issuance of the warrant or the good faith exception:<\/p>\n

The affidavit in this case provides no detail with respect to what Mr. Lewis actually saw. The only information in the affidavit about the images is as follows: “Sundstrom advised Lewis had been a Computer technician for a long time and has worked on several home computer processing units. Sundstrom advised Lewis has found pornography on several computers but believes that what he found on the Grant’s [sic] computer to be child pornography.” The sum of this information is insufficient to support the issuance of a search warrant because it is too conclusory and because it is hearsay.<\/p>\n

I am unable to join the court’s assertion that Mr. Lewis was uniquely able to distinguish between child pornography and lawful images due to his experience as a computer repairman. We have no information whatever to indicate that Mr. Lewis had any expertise in what constitutes child pornography.<\/p><\/blockquote>\n

Comment:<\/em> When you read the affidavit for the search warrant, the first issue that jumps out at you is the conclusory nature of the information in the affidavit which is rubberstamped by the district court and court of appeals as sufficient to show probable cause. There is no description at all of what was seen. Judge Arnold has the better argument here, but, being a practitioner in the Eighth Circuit, I know that rehearing en banc is not going to happen.<\/p>\n","protected":false},"excerpt":{"rendered":"

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