Defendant\u2019s conversations with a minor on the internet did not provide probable cause to search his computer for child pornography. Moreover, the officer\u2019s deliberate omission of his knowledge of the minor\u2019s serious credibility issues and prior false allegations required suppression of the search. \u201cThe protections of the Fourth Amendment are not lessened based on the nature of the crime investigated.\u201d United States v. Davis, 2011 U.S. Dist. LEXIS 57133 (E.D. Wash. May 27, 2011):<\/p>\n
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) (\u201cGiven 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 \u201clax\u201d in our duty to guard the privacy protected by the Fourth Amendment.\u201d) see also United States v. Krupa, 633 F.3d 1148 (9th Cir. February 11, 2011) (Berzon, J. dissenting) (\u201cI 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.\u201d).<\/p>\n
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 \u201cwill 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.\u201d United States v. Falso, 544 F.3d 110, 124 (2nd Cir. 2008) (internal citations and quotations omitted).<\/p>\n
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.<\/p>\n
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 \u201cupon probable cause\u201d and supported by truthful information (\u201csupported by Oath or affirmation\u201d), and the warrant in this case was not. The Ninth Circuit has stated: \u201cIn the absence of countervailing evidence to bolster the informant\u2019s credibility or the reliability of the tip, an informant\u2019s criminal past involving dishonesty is fatal to the reliability of the informant\u2019s information, and his\/her testimony cannot support probable cause.\u201d 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 \u201cunfounded\u201d 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\u2019s credibility or reliability. A judge reviewing all of these circumstances with knowledge of the serious credibility issues of GT, GT\u2019s mother\u2019s vague suspicion that \u201csomething\u201d had occurred, the GT identified Myspace chats, and Davis\u2019 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\u2019s personal computer.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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