Monday, June 17, 2013
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Panel Upholds Search Based on Questioned Warrant
By a MetNews Staff Writer
Evidence obtained pursuant to a search warrant, which was issued on the basis that the defendant was a pedophile and therefore likely to be in possession of child pornography, was properly admitted under an exception to the exclusionary rule, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The three judges unanimously agreed that under Ninth Circuit precedent, U.S. District Judge Cormac J. Carney was required to deny Nicholas Needham’s motion to suppress evidence in the form of pornographic images found by Orange Police Department officers when they searched his iPod in June 2010.
The case resulted in three separate opinions, however, as one concurring judge argued that no reasonable police officer would believe that a warrant based on such skimpy grounds was valid, while another panelist said it was unnecessary to rely on the exception because the warrant was valid.
Carney sentenced Needham to nine years in prison following his conditional plea of guilty to possession of child pornography, which he entered after his suppression motion was denied.
Evidence presented at the suppression hearing showed that police targeted Needham after a mother complained that Needham molested her son at a local shopping mall. She said she saw Needham come out of a restroom about the same time the 5-year-old did, and that the boy told her that Needham had touched him in the groin area.
Police determined Needham’s identity by looking at surveillance footage and inquiring at a juice stand in the mall, which police thought he might have visited based on the cup he was seen holding. They tracked his address through the credit card he used at the juice stand, and ran a record check which revealed that he was a registered sex offender.
They then obtained a warrant to search his person, home, and automobile for evidence of child pornography, based on a detective’s affidavit relating that:
“I have learned the following characteristics are found to exist and be true in cases involving persons who molest children, buy, produce, sell, or trade child pornography and who are involved with child prostitutes. They receive sexual gratification and satisfaction from actual physical contact with minors, communications with minors and from fantasy involving the use of pictures, photographs or electronic media and writing on or about sexual activity with minors.”
Such persons also collect sexually explicit materials depicting minors, the detective said. The detective did not state a basis where or how she learned about the asserted characteristics, although she did state that she had been assigned to the Youth Services Bureau since December 2009.
Carney did not rule on the validity of the warrant, but held that the officers were entitled to rely on it based on United States v. Leon, 468 U.S. 897 (1984), which allows evidence obtained pursuant to a search warrant to be admitted—even if the magistrate lacked probable cause—if the police acted in objectively reasonable reliance on the warrant.
Judge Milan D. Smith Jr., writing for the appellate panel, said Carney was correct. He cited Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011), which applied the Leon rule to a civil rights suit against police officers who obtained a warrant based on an affidavit similar to that obtained in Needham’s case.
The Dougherty court held that the search was not supported by probable cause, but that the officers acted in good faith because the appeals court had not previously decided the issue. Smith said that the evidence obtained in Needham’s case, by a search prior to Dougherty being decided, was thus admissible.
Judge Marsha Berzon agreed that Dougherty was controlling, but wrote:
“Were we deciding this case on a blank slate, I would hold that the evidence on the iPod must be suppressed, because the search warrant was so lacking in probable cause as to render the officers’ reliance upon it objectively unreasonable….The warrant was based upon the very type of ‘rambling boilerplate’ that, under the law of this circuit, has been disentitled to the Leon exception to the exclusionary rule for over 20 years.”
Judge Richard Tallman, concurring separately, said the warrant was issued appropriately because the magistrate relied on the “real world experience” of the officer. Dougherty’s categorical holding that the child pornography-child abuse linkage is not enough to support a search warrant was wrong, Tallman argued, and should be revisited.
The case is United States v. Needham, 12-50097.
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