M. Jackson Jones: J F 3/11/2014 5:06 PM

JONES FINAL
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A Confusing Interaction Between the Warrants Clause, Child Pornography, and Child Molestation: Determining Whether Evidence of Child Molestation Creates Probable Cause to Search for Child Pornography
M. Jackson Jones
An offenders pornography and erotica collection is the single best indicator of what he wants to do. It is not necessarily the best indicator of what he did or will do. Not all collectors of child pornography physically molest children and not all molesters of children collect child pornography.1 I. INTRODUCTION Child pornographers are possibly one of the most understudied groups of sexual offenders. In fact, there are only a small number of studies that have attempted to understand their paraphilic, criminogenic, and . . . psychological characteristics.2 Regrettably, when researchers have studied child
M. Jackson Jones works as in-house field counsel for an insurance company. Prior to this, he worked as an Assistant District Attorney for the Bristol County, Massachusetts District Attorneys Office. He also taught legal writing at the University of Massachusetts School of Law. I would like to dedicate this article to Bristol County District Attorney C. Sam Sutter who not only gave me my first job, but always encouraged us young trial attorneys to do better than our best. 1. Kenneth V. Lanning, Child Molesters: A Behavioral Analysis for Professionals Investigating the Sexual Exploitation of Children, NATL CTR. FOR MISSING AND EXPLOITED CHILDREN 107 (5th ed. 2010), available at http://www.missingkids.com/en_US/publications/NC70.pdf. 2. Andres E. Hernandez, Psychological and Behavioral Characteristics of Child Pornography Offenders in Treatment, GLOBAL SYMPOSIUM 5 (2009) [hereinafter Hernandez I], available at http://www.iprc.unc.edu/G8/Hernandez_position_paper_Global_Symposium.pdf.
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pornographers, their research was typically limited to data obtained solely from child pornographers who were either arrested or convicted of sexual offenses. Hence, this prior research is significantly limited because it was only done in clinical settings. Applying the results of data obtained from arrested or convicted child pornographers to all child pornographers is problematic because [t]he number of individuals who are apprehended by law enforcement for committing [child pornography] offenses represents a small proportion of the population of individuals collecting, trading, and producing child pornography worldwide.3 In other words, it is extremely difficult to make generalized statements about all child pornographers when there is little to no data analyzing them in a non-clinical setting. In addition, since child pornographers are understudied, the courts have had significant trouble in deciding whether they should be classified as child molesters. For instance, the Eighth Circuit Court of Appeals held that child pornographers could be classified as child molesters, noting [t]here is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.4 In contrast, the Second Circuit Court of Appeals held it is illogical to conclude that, because members of group A (those who collect child pornography) are likely to be members of group B (those attracted to children), then group B is entirely, or even largely composed of, members of group A.5 These divergent perspectives represent just two views from several courts of appeals that have had to determine whether evidence of child molestation could create probable cause to search for child pornography. Overall, five federal circuits have attempted to answer this question. The Second, Fourth, and Sixth Circuits have all concluded that evidence of child molestation does not automatically create probable cause to search for evidence of child pornography.6 However, the Eighth Circuit has found that evidence of child molestation does create probable cause to search for child pornography.7 The Ninth Circuit has chosen to adopt neither view.8 Instead, it takes a case-by-case approach when examining this issue.9 This Article seeks to answer this question by examining the history of probable cause, cases that have addressed this issue, and research examin-
Id. at 4. United States v. Colbert, 605 F.3d 573, 578 (8th Cir. 2010). United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008). See id.; see also United States v. Doyle, 650 F.3d 460, 472 (4th Cir. 2011); United States v. Hodson, 543 F.3d 286, 289 (6th Cir. 2008). 7. See Colbert, 605 F.3d at 578. 8. See Dougherty v. City of Covina, 654 F.3d 892, 899 (9th Cir. 2011). 9. Id.
3. 4. 5. 6.
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ing the correlation between child pornographers and child molesters. More specifically, Part II will provide a quick overview of probable cause. This section will also give a history of the phrase, as well as define it. Part III will then discuss and analyze the decisions from the Courts of Appeals that have addressed this issue. Part IV will review several of the most significant studies that have sought to determine if there was any correlation between child pornographers and child molesters. Part V will argue that evidence of child molestation does not form probable cause to search for child pornography. The arguments in this section will be based on the aforementioned case law, research studies, and federal statutes. Part VI discusses whether the Leon good-faith exception would prohibit the use of evidence obtained from a search warrant that only contains evidence of child molestation, but was issued to search for child pornography. Lastly, the Conclusion will provide a summation of the Articles main arguments. II. UNDERSTANDING PROBABLE CAUSE The following subsections will provide a general overview of the phrase probable cause. Specifically, subsection II(A) will discuss the history of this term, as well as its relationship with writs of assistance (writs) and general warrants. In addition, subsection II(B) will examine how probable cause became a part of the Fourth Amendment and subsection II(C) will discuss the definition of probable cause. Lastly, subsection II(D) will examine the tests used to determine whether a search warrant contains probable cause. A. A Brief History of General Warrants, Writs of Assistance, and Probable Cause In Henry v. United States, Justice Douglas recognized that the roots of probable cause are deeply imbedded in our nations history.10 In fact, the Fourth Amendment, which was ratified as a part of the Bill of Rights in 1791, was enacted to end the abuses associated with warrants issued without probable cause.11
10. 11.
See Henry v. United States, 361 U.S. 98, 100 (1959). See State v. Ochoa, 792 N.W.2d 260, 272-73 (Iowa 2010).
Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book, because they placed the liberty of every man in the hands of every petty officer. The historic
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The British government routinely used general warrants and writs to conduct unreasonable searches of colonists and colonists property.12 Besides being used to conduct unreasonable searches, writs and general warrants had many other similarities. For instance, they both were relatively easy to obtain. Indeed, the British government regularly issued writs and general warrants even if the government official, who was seeking the warrant, did not identify or specify the persons and places to be searched . . . .13 In addition to not being specific, writs and general warrants were also issued without an oath or affirmation or any indicia of probable cause.14 Overall, general warrants and writs perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of probable cause before a magistrate was required.15
occasion of that denunciation, in 1761 at Boston, has been characterized as perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. Then and there, said John Adams, then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. Stanford v. Texas, 379 U.S. 476, 481-82 (1965) (citing Boyd v. United States, 116 U.S. 616, 625 (1886)). 12. See Virginia v. Moore, 553 U.S. 164, 168-69 (2008) (the phrase British Government will be used interchangeably with the phrase Crown). 13. State v. Brown, 840 N.E.2d 311, 418 (Ind. Ct. App. 2006) (citing NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 26-27, 31-50, 51-78 (1937)). 14. See id. 15. Henry, 361 U.S. at 100. Even though writs and general warrants were issued without probable cause, they each served a different purpose. Typically, general warrants only permitted government searches for specific illegal acts associated with publishing. For example, the Crown would routinely issue general warrants to control the printing industry and censor seditious publications. Brown, 840 N.E.2d at 418. Additionally, general warrants were valid until they were executed. See Barry Jeffrey Stern, Warrants Without Probable Cause, 59 BROOK L. REV. 1385, 1390 n.16 (1994). Writs, which were also issued without a showing of probable cause, differed from general warrants because they required Crown officers to aid in their execution. See LASSON, NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 28-29 (1937). In addition, unlike general warrants, writs were primarily used to search for uncustomed or smuggled goods in effect, forcing American colonies to only trade with the British Empire. See Stern, supra note 15, at 1441 n.15; see also Chris K. Visser, Comment, Without a Warrant, Probable Cause, or Reasonable Suspicion: Is There any Meaning to the Fourth Amendment While Driving a Car?, 35 HOUS. L. REV. 1683, 1700 (1999). Essentially, the Crown used writs to maintain its trading monopolies with the colonies. See Brown, 840 N.E.2d at 418. However, unlike general warrants, writs were only valid as long as the sovereign that issued it remained alive. See Stern, supra note 15, at 1441 n.16. Hence, when the issuing monarch deceased, the writ became invalid.
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Judges, colonists, and British citizens consistently expressed either concern or disdain with the Crowns use of general warrants and writs. For example, in 1761, while arguing against the issuance of several writs, James Otis passionately declared:
I will to my dying day oppose with all the powers and faculties God has given me all such instruments of slavery, on the one hand, and villainy, on the other, as this writ of assistance is. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that was ever found in an English lawbook . . . . The writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer . . . . A mans house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Customhouse officers may enter our houses when they please; we are commanded to permit their entry . . . . Bare suspicion without oath is sufficient . . . . Every man prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbors house may get a writ of assistance.16
Just two years later, in 1763, similar sentiments were expressed by British politician William Pitt (Pitt).17 While speaking to Parliament, Pitt stated: [t]he poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter . . . .18 The courts took notice of these concerns. For instance, in Wilkes v. Wood, a 1763 civil case, John Wilkes (Wilkes) sued the government for performing a search with a warrant that allowed executing officials to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled [sic], the North Briton, No. 45 . . . and them, or any of them, having found, to apprehend and seize, together with their papers.19 This single warrant was used to search at least five different residences, arrest over forty British subjects, and seize various books and papers that Wilkes owned.20 The court agreed with Wilkes and
16. Timothy Lynch, In Defense of the Exclusionary Rule, 23 HARV. J.L. & PUB. POLY 711, 722 (2000). James Otis was a colonial attorney retained to argue against reissuance of writs. 17. See GOVT PRINTING OFFICE, FOURTH AMENDMENT: SEARCH AND SEIZURE 1199 n.2 (1992), available at www.gpoaccess.gov/constitution/pdf/con015.pdf. 18. Id. 19. Harold J. Krent, The Continuity Principle, Administrative Constraint, and the Fourth Amendment, 81 NOTRE DAME L. REV. 53, 58 (2005). 20. See Jon Eldredge, National Perspective, Detainment of United States Citizens as
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held that this warrant was defective, mainly because it was based on information which had not the least shadow of probability in it.21 John Entick (Entick), an associate of Wilkes, also sued the government for a trespass arising from the execution of a search warrant.22 As in Wilkes, the court expressed discomfort with the use of the general warrant. It held, the warrant and the behavior it authorized [was] subversive of all the comforts of society.23 In addition, the court further noted, the issuance of a warrant for the seizure of all of a persons papers rather than only those alleged to be criminal in nature [was] contrary to the genius of the law of England.24 In 1767, Parliament passed the Townsend Act, which was enacted to eliminate lingering questions over the legality of writs of assistance.25 Even though this Act authorized the use of writs, judges refused to issue them.26 The states expressed a similar disdain for general warrants and writs. In fact, in 1776, several state constitutions had provisions prohibiting the use of warrants that did not contain probable cause.27 For example, under the Maryland Declaration of Rights, all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants . . . are illegal, and ought not to be granted.28 Similarly, the North Carolina Declaration of Rights expressed the same sentiments with comparable language.29 Under the North Carolina Declaration of Rights, [g]eneral warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named . . . are dangerous
Enemy Combatants Under a Fourth Amendment Historical Analysis, 6 J.L. & SOC. CHALLENGES 19, 25-26 (2004). 21. Id. at 25; see also Michael Longyear, Note, To Attach or Not to Attach: The Continued Confusion Regarding Search Warrants and the Incorporation of Supporting Documents, 76 FORDHAM L. REV. 387, 391-92 (2007) (noting Wilkes won his lawsuit and received a judgment of 5000 pounds [5,000]). 22. See Thomas K. Clancy, What is a Search within the Meaning of the Fourth Amendment?, 70 ALB. L. REV. 1, 4 (2006). 23. GOVT PRINTING OFFICE, supra note 17, at 1200 (alteration in original). 24. Id. (alteration in original). 25. Eldredge, supra note 20, at 26. 26. See id. at 27. 27. See Henry v. United States, 361 U.S. 98, 100-01 (1959). 28. Id. at 101 (alteration in original). 29. See N.C. CONST. art. I, 20, available at http://www.ncga.state.nc.us/Legislation/constitution/article1.html (last visited Nov. 8, 2013).
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to liberty and shall not be granted.30 Lastly, the Pennsylvania Declaration of Rights also prohibited the use of general warrants and writs.31 It required that no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.32 B. Probable Cause and the Fourth Amendment Following the adoption of the various state constitutional prohibitions against general warrants and writs, Congress proposed the Fourth Amendment. The Fourth Amendment, which was proposed on September 25, 1789, was enacted to prevent the new American government from arbitrarily exercising its law enforcement powers through the use of general searches and seizures . . . .33 Under the Fourth Amendment to the United States Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.34
This amendment, which the courts use to determine the legality and reasonableness of government-initiated searches, is solely composed of two separate clauses the Reasonableness Clause and the Warrants Clause.35 The first clause, which is called the Reasonableness Clause, states that [t]he right of the people to be secure in their persons, houses, papers, and
Id. See PA. CONST. art. XIII, 8, available at http://www.legis.state.pa.us/wu01/vc/visitor_info/creating/constitution.cfm (last visited Nov. 8, 2013). 32. Id.; see also MASS. CONST. art. XIV, The Massachusetts Declaration of Rights: Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws. MASS. CONST. art. XIV. 33. Cassady v. Tackett, 938 F.2d 693, 699 (6th Cir. 1991) (Engel, J., concurring in part and dissenting in part). 34. U.S. CONST. amend. IV. 35. See id.
30. 31.
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effects, against unreasonable searches and seizures, shall not be violated . . . .36 In essence, the Reasonableness Clause identifies both the purpose and protections afforded by the Fourth Amendment. More specifically, under this clause, citizens are protected from unreasonable searches and seizures of their bodies, homes, property, and effects.37 The second clause, which is known as the Warrants Clause, identifies the requirements for issuing a valid search warrant.38 This clause states, [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.39 Hence, under the Warrants Clause, a search warrant is valid if it: 1) contains probable cause; 2) was issued by a neutral and detached magistrate; 3) particularly describes the place to be searched and the person or things to be seized; and 4) is supported by an oath or affirmation.40 The relationship between the Reasonableness Clause and Warrants Clause is easy to discern. As the Supreme Court has noted, [t]he [Warrants] Clause . . . gives content to the word unreasonable in the first Clause.41 In other words, the Warrants Clause mandates that all seizures are reasonable only if supported by probable cause.42 C. What is Probable Cause? Probable cause protects citizens by requiring that the police act only on some articulable modicum of evidence.43 However, the phrase probable cause is not defined in the Fourth Amendment or any federal statutes.44 Instead, its definition is solely derived from the courts interpretation of it.45 For instance, in Stacey v. Emery, the Supreme Court defined probable cause as [a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offence with which he is charged.46 SimilarId. See id. See id. Id. See id. New Jersey v. T.L.O., 469 U.S. 325, 359 (1985) (Brennan, J., dissenting). Id. (emphasis added). Shannon OPry, Comment, A Constitutional Mosh Pit: The Fourth Amendment, Suspicionless Searches, and the Toughest Public School Drug Testing Policy in America, 33 TEX. TECH L. REV. 151, 164 (2001) (quoting ELLEN ALDERMAN & CAROLINE KENNEDY, IN OUR DEFENSE: THE BILL OF RIGHTS IN ACTION 380 n.138 (1991)). 44. GOVT PRINTING OFFICE, supra note 17, at 1217. 45. See id. 46. Stacey v. Emery, 97 U.S. 642, 645 (1878); see also Dumbra v. United States, 268
36. 37. 38. 39. 40. 41. 42. 43.
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ly, in Carroll v. United States, it was defined as [t]he facts and circumstances before [an] officer [that would] warrant a man of prudence and caution in believing that the offense has been committed. . . .47 D. When Does Probable Cause Exist? Even though there is not a concrete definition of probable cause, the Supreme Court has developed two tests for determining whether it can be found in a search warrant. The first test is identified as the Aguilar-Spinelli test.48 Under the Aguilar-Spinelli test, the court determines whether a search warrant contains probable cause by examining: (1) the basis of the informants knowledge and (2) the veracity of the informant.49 The basis of knowledge prong is satisfied if the search warrant identifies how the informant obtained his information.50 In addition, the veracity prong is satisfied if the search warrant identifies some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable.51 Each of the two prongs of the test must be separately considered and satisfied, but independent police corroboration can rectify deficiencies in either or both prongs.52 The federal government used the Aguilar-Spinelli test until 1983 when the Supreme Court abandoned it and adopted the totality of the circumstances test.53 The Supreme Court noted that under this test, the neutral and detached magistrate had to:
make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.54
Unlike the Aguilar-Spinelli test, where each prong is analyzed indeU.S. 435, 441 (1925) (describing probable cause as less than evidence which would justify condemnation.). 47. Carroll v. United States, 267 U.S. 132, 161 (1925) (quoting Stacey v. Emery, 97 U.S. 643, 645 (1878)). 48. See generally Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964) (developing the test currently used by a small minority of states, such as Massachusetts, New Mexico, New York, and Tennessee). 18 U.S.C. 1952 (2012). 49. See Spinelli, 393 U.S. at 413. 50. See Commonwealth v. Upton, 476 N.E.2d 548, 557 (Mass. 1985) (citing Aguilar, 378 U.S. at 114). 51. Id. 52. Commonwealth v. Reyes, 670 N.E.2d 147, 149 (Mass. 1996) (citation omitted). 53. See Illinois v. Gates, 462 U.S. 213, 238 (1983). 54. Id.
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pendently, the totality of the circumstances test requires both prongs to be analyzed together.55 Hence, under the totality of the circumstances test, a deficiency in one [prong] may be compensated for . . . by a strong showing as to the other [prong], or by some other indicia of reliability.56 III. CIRCUIT SPLIT The following subsections will discuss the significance of this circuit split, as well as cases from the circuits that have analyzed this issue. First, in subsection III(A), the significance of this split is identified.57 Second, subsection III(B) discusses cases from the Second, Fourth, and Sixth Circuit Courts of Appeals.58 These federal circuits have refused to hold that evidence of child molestation alone, forms probable cause to search for child pornography.59 Third, subsection III(C) discusses the Eighth Circuit Court of Appeals decision in United States v. Colbert.60 In that case the court of appeals held that evidence of child molestation may provide probable cause to search for evidence of child pornography.61 Lastly, subsection III(D) discusses the Ninth Circuits opinion in Dougherty v. City of Covina where a case-by-case approach was adopted.62 A. Significance of the Circuit Split Ideally, the federal court system aims to have all defendants treated equally. However, under this current circuit split, the courts of appeals are treating defendants differently, because the courts are applying different standards of probable cause when determining whether evidence of child molestation could create probable cause to search for child pornography. As previously written, the Second, Fourth, and Sixth Circuits have determined probable cause to search for child pornography is not established solely with evidence of child molestation.63 In contrast, the Eighth Circuit has found that evidence of child molestation does create probable cause to
See id. at 233. Id. See infra Part III.A. See infra III.B.; United States v. Falso, 544 F.3d 110, 110 (2d Cir. 2008); United States v. Doyle, 650 F.3d 460, 460 (4th Cir. 2011); United States v. Hodson, 543 F.3d 268, 268 (6th Cir. 2008). 59. See Doyle, 650 F.3d at 472; Falso, 544 F.3d at 122; see Hodson, 543 F.3d at 289;. 60. See infra Part III.b.i.; see United States v. Colbert, 605 F.3d 573, 573 (8th Cir. 2010). 61. See Colbert, 605 F.3d at 578. 62. United States v. Dougherty, 654 F.3d 892, 899 (9th Cir. 2011). 63. See Doyle, 650 F.3d at 472; Falso, 544 F.3d at 122; Hodson, 543 F.3d at 289.
55. 56. 57. 58.
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search for child pornography.64 The Ninth Circuit has held that evidence of child molestation could, in some situations, create probable cause to search for child pornography.65 With these varying views amongst the courts of appeals, this split is screaming for Supreme Court intervention. B. Circuits Not Linking Child Pornography and Child Molestation 1. Second Circuit: United States v. Falso a. The Underlying Facts On June 1, 2005, Federal Bureau of Investigations agents (agents) were issued a warrant to search the home of David Falso (Falso).66 The purpose of this warrant was to search for and seize evidence of child pornography in Falsos home.67 On June 8, 2005, agents executed the warrant and confiscated Falsos computer and a box containing child pornography . . . .68 In addition, during the search, Falso admitted to, among other things, obtaining child pornography from the internet; engaging in sexual activity with females in other countries whom he believed to be between the ages of sixteen and eighteen; and having been convicted for sexually abusing a seven-year old girl.69 i. The Search Warrant Affidavit The FBIs search warrant affidavit, which was authored by Agent James Lyons (Agent Lyons), contained information about: 1) the use of computers and the internet to view and collect child pornography; 2) Falsos involvement in the FBIs investigation; and 3) Falsos criminal history.70 ii. Computers and Child Pornography A portion of Agent Lyons affidavit discussed the connection between child pornography and computer usage.71 He noted that child pornographers typically use computers to communicate with like-minded individuals, store their child pornography collections, and locate, view, download, collect and organize images of child pornography found on the
64. 65. 66. 67. 68. 69. 70. 71.
See Colbert, 605 F.3d at 578. See Dougherty, 654 F.3d at 899. See Falso, 544 F.3d at 114. Id. Id. (subsequently, child pornography was also discovered on Falsos computer). Id. Id. at 113-14. See id. at 114.
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internet.72 Additionally, Agent Lyons included a statement from a member of the FBIs Behavioral Analysis Unit who stated that, [t]he majority of individuals who collect child pornography are persons who have a sexual attraction to children and that those who collect images of child pornography generally store their collections at home.73 iii. Falsos Involvement in the Investigation Additionally, Agent Lyons affidavit also provided a description of Falsos involvement in the investigation.74 He noted that the FBI was investigating the website www.cpfreedom.com because it contained approximately eleven images of child pornography, and . . . advertised additional child pornography at an internet address that was hidden until a membership was purchased.75 The FBI received this information from an undercover agent.76 This undercover agent received a membership to the CP Freedom Group.77 After obtaining this membership, CP Freedom Group provided [the agent] the address, login number, and password for its membership website, www.cp-members.com.78 The FBI then performed a forensic examination of the website hosting www.cpfreedom.com.79 The results of the examination identified several subscribers and their corresponding email addresses.80 Falso was identified as one of the subscribers via his email address, cousy1731@yahoo.com.81 Based on this information, Agent Lyons concluded that, it appear[ed] that Falso either gained access or attempted to gain access to the [non-member] website www.cpfreedom.com.82 iv. Falsos Criminal History Agent Lyons affidavit also noted that in February 1987, Falso was charged with sexual abuse and endangering the welfare of a child.83 In that case the police alleged that Falso digitally penetrated a seven-year-old
72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.
Id. at 113. Id. See id. at 113-14. Id. Id. at 114. Id. Id. Id. Id. Id. Id. Id.
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girl.84 In addition, during the investigation of that case, Falso acknowledged to police that he may need counseling for latent problems.85 Several months later, in September 1997, Falso pled guilty to acting in a manner injurious to a child less than sixteen and he was sentenced to probation.86 b. Procedural History On June 16, 2005, Falso was indicted for several crimes including production of child pornography, transporting child pornography, shipping child pornography, possession of child pornography, and traveling with the intent to engage in illicit sexual conduct with minors.87 Following the indictment he filed a motion to suppress the evidence found in his home.88 Falso believed:
the presence of his e-mail address on the cpfreedom.com website was an insufficient basis for probable cause in the absence of any allegations in the affidavit that [he] was a member or subscriber to the website, or that the overriding purpose of the website was the trading of child pornography.89
On February 24, 2006, the district court denied Falsos motion.90 In denying the motion to suppress, the court provided five reasons why the warrant contained probable cause.91 It wrote:
First, there was the information concerning the background of persons dealing in child pornography, including the fact that persons who collect child pornography have a sexual attraction to children. Second, there was information that the web site, CP Freedom, advertised that it contained child pornography, actually had some images of child pornography available on it free of charge and advertised that it had additional images of child pornography upon payment of a fee. Third, the FBI determined that the material associated with the website is hardcore child pornography. Fourth, there was evidence that [Falso] had access or attempted to access the CP Freedom web site. Fifth, there was information [that Falso] actually engaged in inappropriate sexual contact with a minor in the past.92
84. 85. 86. 87. 88. 89. 90. 91. 92.
Id. Id. Id. Id. at 115. Id. Id. Id. Id. at 116. Id. (emphasis added).
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The court further noted that even if the warrant did not contain probable cause, the evidence found in Falsos home would still be admissible pursuant to the Leon good-faith exception to the exclusionary rule.93 Following the denial of his motion to suppress, Falso pled guilty to the entire indictment and received a term of thirty years imprisonment.94 c. Analysis of the Second Circuits Majority Opinion The Second Circuit Court of Appeals held that the district court improperly found that Agent Lyons search warrant contained probable cause.95 However it affirmed the district courts ruling.96 The court believed the search warrant lacked probable cause for several reasons.97 First, the court recognized that Agent Lyons affidavit did not provide any proof that Falso subscribed to the membership website.98 Instead, the affidavit merely stated, it appear[ed] that [Falso] gained access or attempted to gain access to the non-member cpfreedom.com website.99 Thus, as the court acknowledged, there [was] no specific allegation that Falso accessed, viewed or downloaded child pornography.100 Second, the court did not believe Falsos prior convictions added to the probable cause analysis.101 It noted that the district court improperly correlated Falsos prior conviction for sexual abuse and endangering the welfare of a child with possession of child pornography.102 The court wrote, [i]t is an inferential fallacy of ancient standing to conclude that, because members of group A (those who collect child pornography) are likely to be members of group B (those attracted to children), then group B is entirely, or even largely composed of, members of group A.103 Hence, the court did not believe there was any correlation between Falsos prior conviction for sexual abuse and his current charge of child pornography.104 In fact, the court even noted that Agent Lyons affidavit was completely devoid of any information correlating child molestation and child pornogra-
Id. at 117. Id. When Falso pled guilty he reserved his right to appeal the district courts denial of his motion to suppress. Id. 95. See id. at 124. 96. Id. at 129. 97. See id. at 121. 98. See id. 99. Id. at 114. 100. Id. 101. Id. at 123. 102. Id. at 122. 103. Id. 104. See id.
93. 94.
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phy.105 Third, the court also took issue with the affidavits statement that computers are utilized by individuals who exploit children (which includes collectors of child pornography) to . . . locate, view, download, collect and organize images of child pornography found through the internet.106 It ruled that this statement provided no insight into whether Falsos computer contained child pornography.107 In fact, the court noted that this statement would be equally true if 1% or 100% of those who exploit children used computers to do those things.108 i. Good-Faith Exception Even though the court found the search warrant did not contain probable cause, it affirmed the district courts application of the good-faith exception to deny Falsos suppression motion.109 In United States v. Leon, the Supreme Court ruled that the exclusionary rule does not prohibit the use of evidence obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate judge, even where the warrant is subsequently deemed invalid.110 The Falso court then identified the four situations when the Leon goodfaith exception would not mandate admission of evidence:
(1) where the issuing [judge] has been knowingly misled; (2) where the issuing [judge] wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient [such as by failing to particularize the place to be searched or the things to be seized] that reliance upon it is unreasonable.111
On appeal, Falso argued that Leon did not apply due to the first and third situations.112 More specifically, first he argued the issuing judge/magistrate was knowingly or recklessly misled.113 Second, Falso argued the affidavit
Id. Id. Id. Id. (the court also found that Falsos prior conviction was marginally relevant because it was stale). 109. Id. at 129. 110. Id. at 125 (citing United States v. Leon, 468 U.S. 897, 922 (1984)). 111. Id. at 125. 112. See id. at 125-29. 113. See id. at 125. The court did not believe that the affidavit contained knowingly or recklessly misleading statements. It wrote, even assuming that any of the statements in the affidavit misled the district court, Falso has not met his burden of demonstrating that Agent Lyons made the alleged misrepresentations and that he omitted material information know105. 106. 107. 108.
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was so lacking in indicia of probable cause as to render reliance upon it unreasonable.114 ii. So Lacking in Indicia of Probable Cause as to Render Reliance Upon it Unreasonable Falso argued that the search warrant affidavit was so lacking in indicia of probable cause as to render [the executing officers] reliance upon it unreasonable; the court disagreed.115 It believed that [o]nce the district court ruled on the legal sufficiency of the facts alleged in the affidavit, the officers were justified in executing the warrant.116 In other words, the court believed any fault in determining probable cause fell with the district court because the district court determined the search warrant contained probable cause prior to issuing it.117 Hence, the court held that it was not unreasonable for the FBI to believe the search warrant contained probable cause since the district court had already made that determination.118 d. Significance of United States v. Falso In Falso, the court ruled child pornographers could not automatically be classified as child molesters.119 In making this ruling, the court noted it was illogical for law enforcement officials to make this assumption. 2. Sixth Circuit: United States v. Hodson a. The Underlying Facts On October 7, 2005, Detective Juan Passano (Det. Passano), who worked for the Passaic County, New Jersey Sheriffs Department Internet Crimes Section, was doing an investigation of online sexual predators.120 As part of his investigation, he logged onto AOL as kidlatino12 and represented himself as a twelve-year-old boy.121 While posing as kidlatino12, Det. Passano began speaking with an individual with the screen name WhopperDaddy.122 WhopperDaddy informed Det. Passano that he was
ingly or recklessly. Id. at 128. 114. Id. at 128-29. 115. Id. 116. Id. at 128. 117. See id. 118. Id. 119. Id. at 122-23. 120. See United States v. Hodson, 543 F.3d 286, 287 (6th Cir. 2008). 121. Id. 122. Id.
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forty-one years old.123 In addition, WhopperDaddy admitted to being gay, as well as molesting his seven-year-old nephew.124 Through subsequent investigation Det. Passano learned that the screen name WhopperDaddy belonged to Michael Hodson, Jr. (Hodson), a resident of Kentucky.125 Once learning Hodsons identity, Det. Passano provided the results of his investigation to Detective Jacqualine Pickrell (Det. Pickrell), an officer with the Kentucky State Police Internet Crimes Against Children Task Force.126 In response to receiving this information, Det. Pickrell conducted her own investigation.127 She verified Hodsons age and address, but discovered that he had only one son and no known nephews.128 After completing her investigation, Det. Pickrell submitted a search warrant application to a magistrate judge.129 The judge issued the warrant, which was executed on January 26, 2006.130 As a result of the search, police seized two computers, a web cam, a DVD, a CD, a floppy disk, four VHS tapes, and an envelope containing miscellaneous papers.131 A forensic analysis later determined that the hard drives contained ten to fifty images of child pornography.132 i. The Search Warrant Affidavit Det. Pickrells affidavit contained the information she obtained from Det. Passano, as well as her own investigation.133 In her affidavit, Det. Pickrell sought to search for:
Any and all computers, hard drives, zip drives, data bases, software, diskettes, floppy disks, CDs, printers and/or any other electronic devices
Id. Id. WhopperDaddy also stated he enjoyed looking at his nine year old and eleven year old sons while they were nude. WhopperDaddy also expressed his desire to perform oral sex on the presumptive twelve-year-old boy (i.e., Detective Passano) and his willingness to travel to New Jersey to do so. Id. 125. See id. Det. Passano, through use of a subpoena to AOL, learned Hodson had several other screen names including TN_Cyclops and lubemyrod. Id. 126. Id. at 287. 127. See id. 128. Id. 129. Id. 130. Id. at 289. 131. Id. 132. Id. at 287. These specific images were downloaded on December 6, 2002, and subsequently deleted. Hence, when the warrant was executed, Hodson did not have access to those fifty child pornography images. Id. 133. Id.
123. 124.
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and/or their components of any kind capable of printing, recording, storing, transferring and/or disseminating documents, notes, calculations, schedules, spread sheets and/or any other information and/or data of any kind including any and all books or manuals that may contain sexually explicit reproductions of a childs image, voice, or handwriting. . . .Visually explicit images, whether on paper or its equivalent stored in electronic, magnetic or other computer formats including such images as stored within computer storage devices and other computer media depicting any child known or reasonably believed to be under the age of 18 years of age, in which the child is actually or by simulation engaged in any act of sexual intercourse with any person or animal . . . .134
She concluded this portion of the search warrant by asking the court to allow her to remove the computer system(s), and related computer peripherals, storage devices, software and media to an off-site controlled environment to perform the search for the items described above.135 b. Procedural History On October 23, 2006, Hodson was indicted for receiving and possessing child pornography.136 Following the indictment, he filed a motion to suppress evidence of the search, because: (1) the information in the affidavit, purporting to support probable cause, was stale; (2) the nexus between the probable cause (i.e., the on-line chat) and the place to be searched (i.e. Hodsons residence) was insupportably speculative; and (3) the affidavit was unsworn.137 Subsequently, Hodson supplemented his motion to suppress and argued the affidavit also lacked any probable cause to search for evidence of child pornography.138 The magistrate held an evidentiary hearing on November 30, 2006.139 Following the hearing, the magistrate recommended denial of Hodsons motion to suppress.140 In his decision, the magistrate noted that he was not convinced that evidence of child molestation and illicit online activity alone . . . demonstrates probable cause to believe that [Hodson] possessed child pornography.141 However, the magistrate also believed the Leon good-faith exception ap-
134. 135. 136. 137. 138. 139. 140. 141.
Id. at 287-88. Id. at 288. Id. at 289. Id. at 288-89. Id. at 290. Id. See id. at 291. Id. at 290 (emphasis added).
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plied to this search.142 Specifically, the district court magistrate ruled it was not unreasonable for the magistrate judge to believe that probable cause based on sexual activity with a minor would support a search for child pornography, inasmuch as at least one other federal court had so held.143 The district court judge agreed with the magistrates recommendation and denied Hodsons motion to suppress.144 Like the magistrate, the district court concluded the warrant lacked probable cause because Det. Pickrell failed to offer the expertise necessary to establish a link between sexual deviance . . . and pornography possession.145 However, in denying the motion, the judge ruled the affidavit contain[ed] information demonstrating that, at the very least, [Hodson] was engaged in child molestation and illicit online activity.146 The judge further held that child molestation and child pornography were related because they both involve[d] sexual exploitation of minors.147 Following the denial of his motion, Hodson entered a conditional guilty plea and was sentenced to seventy-one months imprisonment.148 c. Analysis of the Sixth Circuits Majority Opinion The court immediately found that Det. Pickrells warrant lacked probable cause to search Hodsons residence for child pornography because the warrant established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography).149 Thus, the court noted that it only had to determine whether the Leon good-faith exception supported admission of the seized items.150 Prior to analyzing this issue, the court identified the four situations when the Leon good-faith exception would not apply. It noted that the good-faith exception mandated suppression if: (1) the magistrate [judge] was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) the magistrate [judge] abandoned his [or her] judicial role
142. 143. 144. 145. 146. 147. 148. 149. 150.
See id. at 291. Id. Id. at 292. Id. at 291. Id. Id. at 292. Id. Id. Id.
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(3) the warrant was so lacking in indicia of probable cause as to render official belief in its existence unreasonable; or (4) the warrant was so facially deficient that it could not reasonably be presumed valid.151 After identifying these four situations, the court then analyzed Hodsons argument that the search warrant lacked probable cause.152 It agreed with Hodson and held, it was unreasonable for the officer executing the warrant in this case to believe that probable cause existed to search Hodsons computers for child pornography based solely on a suspicion . . . that Hodson had engaged in child molestation.153 d. Significance of United States v. Hodson In Hodson, the Sixth Circuit Court of Appeals established that there is not a definitive correlation between child molestation and child pornography. In coming to this conclusion, it expressed continued support of the premise that [s]tanding alone, a high incidence of child molestation by persons convicted of child pornography crimes may not demonstrate that a child molester is likely to possess child pornography.154 Interestingly, the courts decision does not reference or rely upon any research studies analyzing the characteristics of either child molesters or child pornographers.
Id. See id. at 293. Id. The Court of Appeals also held that it was unreasonable for the magistrate judge to find the warrant established a nexus to search Hodsons home. It wrote, [a]n officer seeking a warrant must produce adequate supporting facts about the underlying circumstances to show that probable cause exists to support the particular search requested. Id. at 293-94. This warrant failed to provide any facts tying Hodsons home with the possession of child pornography. See id. at 291-94. 154. Id. at 290 (citing United States v. Adkins, 169 F. Appx 961, 967 (6th Cir. 2006)). In Adkins, the Sixth Circuit Court of Appeals held [s]tanding alone, a high incidence of child molestation by persons convicted of child pornography crimes may not demonstrate that a child molester is likely to possess child pornography, unless the search warrant affidavit contained institutional knowledge that child molesters also possessed child pornography. Id. at 294 n.4; see also United States v. Adkins, 169 F. Appx 961, 967 (6th Cir. 2006). The Hodson Court did not believe Adkins applied because the Adkins affidavit contained information from an FBI expert on crimes against children that demonstrated . . . the suspect was likely to purse and collect child pornography. Hodson, 543 F.3d at 294 n.4. Moreover, it noted that the standing alone language was purely dicta. Id.
151. 152. 153.
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In August 2003, Lee County, Virginia Sheriffs Department officials spoke with Edward Jones (Jones).155 Jones informed the Sheriffs Department that his step-nephews were sodomized by Robert Doyle (Doyle).156 His oldest step-nephew also stated, Doyle showed him pictures of nude boys.157 After speaking with Jones, Lieutenant Frank Rouse (Lt. Rouse), an officer with the Lee County Sheriffs Department, spoke with Joness step-nephews.158 First, he spoke with Child 1.159 Child 1 informed Lt. Rouse of three separate incidences of sexual assault.160 The first incident occurred when Doyle picked up Child 1 from a pool hall and took the child to Doyles house.161 While in the house, Child 1 was sodomized by Doyle.162 On the second occasion, Doyle picked up both Child 1 and Child 1s younger brother (Child 2).163 He took both children to his home and sodomized Child 2.164 Lastly, Child 1 stated the third instance occurred after Doyle picked him up from a trailer park and fondled him.165 Child 1 never alleged that Doyle showed him child pornography.166 Child 2 did not describe any instance of sexual assault.167 Additionally, like Child 1, Child 2 did not allege that Doyle showed him child pornography.168 Child 3, who was discovered during the Sheriffs investigation of Doyle, also informed Lt. Rouse he was sexually assaulted by Doyle.169 According to Child 3, Doyle picked him up at a pool hall and took him back to Doyles home.170 While in the house, Doyle sodomized Child 3.171 Child 3 never made an allegation that he was shown child pornography by
155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171.
See United States v. Doyle, 650 F.3d 460, 464-65 (4th Cir. 2011). Id. at 465. Id. Id. Id. Id. Id. See id. See id. See id. See id. Id. Id. Id. See id. See id. See id.
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Doyle.172 After the investigation was completed, Captain Taylor Scott (Capt. Scott) submitted a search warrant application to search Doyles home. The warrant, which was executed on January 9, 2004, resulted in the confiscation of Doyles computers hard drive.173 The Sheriffs would later learn that child pornography was located on the hard drive.174 i. The Search Warrant Affidavit The search warrant affidavit sought evidence of child pornography in the form of books, magazines, videos, or pictures.175 Specifically, Capt. Scotts affidavit stated, [t]hree minor children have come forward and stated that [Doyle] has sexually assaulted them at the Doyle residence. One victim[] [sic] disclosed to an Uncle that Doyle had shown the victim pictures of nude children.176 In addition, the search warrant affidavit stated the information contained within it was from an informant whose credibility was determined from [d]etailed victim statements of the assault and of the Doyle residence, where victims describe the assailants [sic] bedroom and vehicle he drives and description of the home.177 b. Procedural History Doyle was indicted for receipt, possession, and mailing of child pornography.178 In August 2007, Doyle filed a motion to suppress because he believed the Sheriffs search warrant did not contain probable cause.179 In September 2007, a magistrate conducted an evidentiary hearing on the motion.180 Following the hearing, the magistrate recommended that the district court judge allow the motion to suppress.181 The magistrate ruled that the search warrant did not contain probable cause to believe child pornography was in Doyles home.182 In fact, the magistrate found that the search warrant did not even identify if the pictures Doyle allegedly possessed would constitute child pornography.183 The magistrate also determined that the
172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183.
Id. Id. at 463. See id. See id. at 464. Id. Id. Id. at 463-64. Id. at 464. Id. Id. at 466. Id. Id.
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Leon good-faith exception did not apply, because the warrant was so bare bones in nature that the issuing magistrate essentially acted as a rubber stamp.184 The district court judge disagreed with the magistrate and denied the motion to suppress.185 He believed the Leon good-faith exception applied in this case.186 The judge recognized the search warrant contained factual inaccuracies.187 However, he attributed those inaccuracies to negligence instead of intentional or reckless falsity.188 In addition, the judge did not believe the magistrate acted as a rubber stamp, because the search warrant was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.189 Following the denial of his motion, Doyle proceeded to trial, was convicted, and sentenced to 235 months in prison.190 c. Analysis of the Fourth Circuits Majority Opinion The court began its analysis by reciting the text of the Fourth Amendment.191 It then began discussing the Leon good-faith exception, as well as the situations when the exception did not apply.192 It wrote that the goodfaith exception would not apply: (1) if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) if the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York . . . ; (3) if the affidavit supporting the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) if under the circumstances of the case are so facially deficienti.e., in failing to particularize the place to be searched or
Id. Id. Id. Id. Id. Id. Id. See id. See id. at 467. The court did not even determine if the warrant contained probable cause under the Fourth Amendment. Instead, it automatically began analyzing this claim under Leon. Id.
184. 185. 186. 187. 188. 189. 190. 191. 192.
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the things to be seized-that the executing officers cannot reasonably presume it to be valid.193 Doyle argued the third exception supported suppression of the evidence obtained during the search.194 i. So Lacking in Indicia of Probable Cause as to Render Reliance Upon it Unreasonable Doyle believed the Leon good-faith exception did not apply, because the search warrant did not contain probable cause to search for child pornography.195 Prior to addressing Doyles argument, the court noted that its main concern on appeal is not simply whether the warrant was deficient, but rather whether it was so deficient that relying on it was unreasonable . . . .196 In order to make this determination, the court had to examine all of the information presented to the issuing magistrate and not just the information contained within the search warrant affidavit.197 The court noted that the search warrant affidavit provided no indication
Id. See id. Id. at 470. Doyle also argued the search warrant was filled with three false and misleading statements. Id. at 467. First, he believed the search warrant was false and misleading, because it misidentified the number of sexual assault victims. Id. The search warrant stated that three children said Doyle assaulted them. Id. However, Lt. Rouse later admitted that it was only two children that accused Doyle of assault. Id. The court disagreed with Doyle and determined the number of Doyles assault victims was not necessary for the magistrate to determine probable cause. Id. at 468. Second, Doyle argued that the affidavit was misleading, because Scott swore that he was advised of the facts set forth in this affidavit in whole or in part, by an informer. Id. at 469. Again, the court disagreed with Doyle. See id. It noted that both Lt. Rouse and Capt. Scott testified they informed the magistrate that Lt. Rouse was the sole interviewer of the minor children. Id. Third, Doyle argued the search warrant affidavit incorrectly stated that all three minor children described Doyles bedroom, truck, and home. Id. However, only Child 3 described Doyles home. Id. The court disagreed holding that the alleged victims did collectively describe Doyles bedroom, vehicle, and home. As such, the information provided, though perhaps misleading by virtue of sentence construction, was not technically false. Id. Doyle also argued the magistrate rubber stamped the search warrant affidavit. Id. The court disagreed with this claim saying that if a magistrate issues a warrant on the basis of nonconclusory statements that nonetheless fail to establish probable cause, the reasonableness of the officers execution of the warrant is better analyzed under the third circumstance discussed in Leon . . .. Id. at 470. 196. Id. at 471. 197. See id. First, Doyle argued that the search warrant did not establish any nexus between his home and the possession of child pornography, but the court disagreed. Id. It held that nexus could be established by the nature of the item and the normal inferences of where one would likely keep such evidence. Id. Hence, the magistrate rightfully found nexus because it was reasonable and logical to infer that if Doyle possessed child pornography it would be located in his home. See id.
193. 194. 195.
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that Doyle possessed child pornography.198 Instead, the majority of the affidavit contained information about sexual molestation.199 The court did not believe this was sufficient to search for child pornography.200 It wrote, evidence of child molestation alone does not support probable cause to search for child pornography.201 Moreover, the court also held the search warrant did not identify whether any of the children accused Doyle of showing them child pornography.202 In fact, it noted that Lt. Rouse had testified that none of the children informed police that Doyle showed them child pornography.203 Indeed, as the court recognized, the only mention in the warrant application regarding the presence of pornography was the statement that one of the alleged victims disclosed to an Uncle that Doyle had shown the victim pictures of nude children.204 Doyle also argued that the search warrant affidavit lacked probable cause because it did not establish whether the pictures referenced by Jones actually constituted child pornography.205 The court agreed.206 It acknowledged that, in Virginia, nudity did not necessarily equate to child pornography.207 Specifically, under Virginia Code Ann. 18.2-374.1(A), in order to constitute child pornography, the photograph or image must be a lewd exhibition of nudity.208 Here, the search warrant affidavit did not contain any indication that the photographs Doyle allegedly showed to the children contained a lewd exhibition of nudity.209 Instead, the affidavit only stated that the photographs depicted nude children.210 Thus, the court held that because possessing nude pictures of children is not per se illegal, reasonable officers should at least obtain a description of the photographs before relying on them to justify entry into a residence.211
Id. at 472. See id. Id. Id. See id. at 473. Id. Id. Id. at 473. Id. at 473-74. See id. at 473. Id.; see VA. CODE ANN. 18.2-374.1(A) (West 2013). Doyle, 650 F.3d at 473. Id. Id. at 473-74. Lastly, Doyle argued the search warrant affidavit lacked probable cause because it contained stale information. See id. at 474. This belief was based on two separate reasons. He believed the information in the affidavit was stale because it did not state when Doyle was in possession of the pornographic pictures, and because it did not
198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211.
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The Fourth Circuit Court of Appeals indicates that an allegation of child molestation, alone, is not sufficient to obtain probable cause to search for evidence of child pornography.212 Like the Sixth Circuits opinion in Hodson, the Fourth Circuit Court of Appeals also did not reference any research studies analyzing the correlation between child pornographers and child molesters.213 C. Circuit Linking Child Pornography and Child Molestation 1. Eighth Circuit: United States v. Colbert a. The Underlying Facts On June 7, 2006, Detective Kelly Myers (Det. Myers) and Detective Mike Martin (Det. Martin), of the Davenport Police Department, drove to Vandeveer Park to investigate a complaint involving a young child.214 When the detectives arrived at the park, they spoke with the uncle of the young child.215 The uncle informed police that he was concerned because another man, later identified as Donald Gene Colbert (Colbert), had been pushing his five year old niece on a swing and talking about movies and videos the man had at his home.216 Following this conversation, Det. Myers and Det. Martin spoke with the five year old, as well as two witnesses.217 While speaking with these witnesses, the detectives learned Colbert had left the park in a blue sedan with rear antennas resembling those of a police cruiser.218 Shortly after obtaining the cars description, two different police officers stopped Colbert while he was driving the car.219 Colbert agreed to let the officers search his car.220 During the search, police located a police scanner, handcuffs, and a hat bearing the phrase New York PD.221 Subsequently, po-
identify when the alleged sexual assaults took place. See id. The court of appeals agreed; it held, even if the affidavit established probable cause, it was completely devoid of indicia that the probable cause was not stale. Id. 212. See id. at 472. 213. See id. at 460. 214. United States v. Colbert, 605 F.3d 573, 575 (8th Cir. 2010). Davenport is in Iowa. 215. See id. 216. Id. 217. See id. 218. Id. 219. See id. 220. Id. 221. Id. Colbert stated the handcuffs were from his security guard job. Id.
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lice applied for and received a warrant to search Colberts home.222 While executing the warrant, police discovered several discs containing child pornography.223 i. The Search Warrant Affidavit The search warrant application was written and prepared by Detective Mark Dinneweth (Det. Dinneweth).224 He sought to search Colberts home for books, photos, videos, and other electronic media depicting minors engaged in a prohibited sexual act or in the simulation of a prohibited sexual act.225 In preparing the search warrant application, Det. Dinneweth provided a description of Det. Myers and Det. Martins investigation.226 He wrote:
On 06-07-06 officers responded to Vandeveer Park [in] reference [to] a suspicious subject. During the course of the investigation it was determined Donald Colbert 512 E Locust St Apt # 3 attempted to lure a five year old female to go to his apartment. Colbert conducted a conversation with the girl for approximately forty minutes telling [her] his apartment had movies and videos she would like to watch and other things for the girl to do. Colberts license plate IA 510NYF was provided by a witness and the vehicle was located by officers at Colberts apartment. Colbert gave consent to search his vehicle where officers observed a police scanner, binoculars, a police type hat, handcuffs, and the vehicle was equipped with CB antennas making it similar to a police vehicle.227
b. Procedural History Colbert filed a motion to suppress evidence found during the warrants execution, which was denied by a district court judge.228 He then pled guilty to possession of child pornography and received a term of 120 months imprisonment.229 c. Analysis of the Eighth Circuits Majority Opinion On appeal, Colbert argued that Det. Dinneweths search warrant was in-
222. 223. 224. 225. 226. 227. 228. 229.
Id. at 575-76. Id. at 576. See id. at 575. Id. Id. at 575-76. Id. Id. at 575. Id.
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valid, because it lacked probable cause.230 Specifically, Colbert believed the search warrant did not establish a link between the evidence of enticement at the park and child pornography in his home.231 In denying Colberts motion, the court discussed the correlation between child pornography and child molestation. It wrote that [t]here is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography, because child molesters could use child pornography as a mechanism for satisfying their sexual urges against children.232 Thus, it held child pornography may very well be a logical precursor to physical interaction with a child. . . .233 In this case, the search warrant affidavit stated that Colbert tried to take the five year old girl to his home.234 Additionally, the affidavit also stated that Colbert presented himself as if he was an authority figurei.e., a police officer.235 For instance, he was operating a blue sedan, that had characteristics of a police cruiser, and wearing clothing that made him look like a police officer.236 Colbert was also in possession of handcuffs and binoculars.237 The court concluded that the possession of these items could give rise to the inference that he was surveilling the area, looking for opportune targets.238 Thus, it agreed with the district courts holding that Detective Dinneweths search warrant contained probable cause to search Colberts home.239 The Eighth Circuit Court of Appeals also recognized that both the Sixth Circuit and Second Circuit had held that evidence of child molestation did not necessarily provide probable cause to search for evidence of child pornography.240 However, this court believed Colberts case could be distin-
230. Id. at 576. Prior to raising this issue, Colbert argued the search warrant was conclusory in nature, failing to specify the source of the information that it contained. Id. The court disagreed and ruled that the statements in the affidavit supported a fair inference that the police officers were the source of the information and that Dinneweth had firsthand knowledge of the investigation. Id. 231. Id. 232. Id. at 578. 233. Id. (citing United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994)) ([C]ommon sense would indicate that a person who is sexually interested in children is likely to also be inclined, i.e., predisposed, to order and receive child pornography.). 234. Id. at 577. 235. Id. 236. Id. 237. Id. 238. Id. 239. Id. 240. See id.
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guished for two different reasons.241 First, the Hodson and Falso cases did not contain the defendants contemporaneous attempt to entice a child.242 Here, as previously written, the search warrant affidavit noted that Colbert asked a five year old to watch movies at his home.243 Second, the search warrants in Falso and Hodson were not issued to search the exact location of the relevant sex crime.244 In Colberts case, the police executed the search warrant for his home, which was the exact location he sought to take the five year old girl.245 d. Significance of United States v. Colbert In Colbert, the Eighth Circuit Court of Appeals indicates that evidence of child molestation may, when coupled with a contemporaneous effort to entice, provide probable cause to search for evidence of child pornography.246 However, it begs the question of whether the court would have come to the same conclusion without the added element of enticement. Even without enticement, the Eighth Circuits ruling might not have changed, because the Colbert court recognized that [t]here is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.247 By using the conjunction or, the court determined that evidence of either child molestation or child enticement could be used to form probable cause to search for child pornography.248 D. Circuit Taking a Case-By-Case Approach 1. Ninth Circuit: Dougherty v. City of Covina a. The Underlying Facts On October 11, 2006, a court magistrate issued a warrant to search the home of Bruce Dougherty (Dougherty); the purpose of the warrant was to search for evidence of child pornography.249 On October 12, 2006, the police executed this warrant and seized Doughertys computers and related items.250 He was not charged with any criminal offenses.251
241. 242. 243. 244. 245. 246. 247. 248. 249. 250.
See id. at 577-78. Id. at 577. Id. at 575. Id. at 578. Id. Id. at 577. Id. at 578. Id. Dougherty v. City of Covina, 654 F.3d 892, 895-96 (9th Cir. 2011). Id. at 896.
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Officer Robert Bobkiewicz (Officer Bobkiewicz), a police officer with the City of Covina Police Department, authored the search warrant affidavit.252 A substantial portion of the affidavit contained information Officer Bobkiewicz obtained while investigating allegations that Dougherty inappropriate[ly] touch[ed] . . . one of his sixth grade students at Royal Oak Elementary School.253 During his investigation, Officer Bobkiewicz spoke with several students.254 First, he spoke with the student who reported this specific allegation.255 This student stated that she had informed Dougherty she had just won a cross-country meet.256 In response, Dougherty lifted her up in front of her classmates.257 While lifting her up, Doughertys hand touched her breast.258 Several other students verified this lifting incident, as well as occasions when Dougherty looked up the skirts and down the shirts of girls in the class.259 Officer Bobkiewiczs affidavit also contained information from an investigation done by Assistant Superintendent for the School District, Gloria Cortez (Cortez).260 During Cortezs investigation, she discovered prior allegations of Dougherty touching the backs of female students.261 She also discovered a 2003 report, which contained an allegation that Dougherty pulled down the shirt of a female student.262 Police spoke with this student and she corroborated the 2003 report.263 She also stated Dougherty had touched her breast.264 The affidavit also described Officer Bobkiewiczs training and experience with sexual offenses.265 He noted that he was a police officer with fourteen years of experience.266 In addition, Officer Bobkiewicz stated,
251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266.
Id. at 895-96. Id. at 896. Id. See id. Id. See id. See id. See id. Id. See id. Id. See id. See id. See id. Id. See id.
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[h]e had over 100 hours of training involving juvenile and sex crimes, had conducted hundreds of investigations related to sexual assaults and juveniles, and was the designated Sex Crimes/Juvenile Detective for the police department.267 Officer Bobkiewicz concluded the affidavit by noting that his training and experience had taught him individuals charged with child molestation typically possess child pornography.268 b. Procedural History Dougherty filed suit against the City of Covina Chief of Police, Officer Bobkiewicz, and the City of Covina.269 He believed these parties violated his Fourth Amendment constitutional rights to be free from unreasonable searches and seizures.270 The district court disagreed with Dougherty and dismissed his suit.271 It ruled that the search warrant not only contained probable cause, but was also executed in a reasonable manner.272 c. Analysis of the Ninth Circuits Majority Opinion The court began its analysis by noting that courts should employ the totality of the circumstances test to determine whether a search warrant has enough information to believe there is a fair probability that evidence will be found in the place being searched.273 In addition, under this test, [t]he magistrate is free to draw reasonable inferences . . . from the material supplied to him by applicants for a warrant.274 The Ninth Circuit Court of Appeals did not believe Officer Bobkiewiczs affidavit contained probable cause to search Doughertys home, because the affidavit had no facts tying the acts of Dougherty as a possible child molester to his possession of child pornography.275 Additionally, the court found the search warrant affidavit lacked any details indicating Dougherty viewed child pornography, spoke with students about child pornography, or even owned a computer that was capable of downloading or
Id. See id. Id. See id. at 896-97. Dougherty also alleged, (2) the City inadequately trained and inadequately investigated complaints about its officers (a Monell claim[)], and (3) the City, [Chief] Raney, and Bobkiewicz inadequately supervised and trained their subordinates with respect to the incidents alleged. Id. at 897. 271. Id. at 896-97. 272. See id at 897. 273. See id. 274. Id. 275. Id. at 898.
267. 268. 269. 270.
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receiving child pornography images.276 After making its ruling, the court discussed the circuit split.277 It acknowledged that the Second and Sixth Circuits had concluded child molestation, alone, does not provide probable cause to search for evidence of child pornography.278 It also acknowledged that the Eighth Circuit had held that child molestation could establish probable cause to search for evidence of child pornography.279 However, the Ninth Circuit Court of Appeals rejected both perspectives and chose to adopt a case-by-case approach.280 It held:
while the totality of circumstances could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewiczs conclusory statement tying this subject, alleged to have molested two children and looked inappropriately at others, to having in [his] possession child pornography is insufficient to create probable cause here.281
d. Significance of Dougherty v. City of Covina In Dougherty, the Ninth Circuit Court of Appeals became the only court to adopt a case-by-case approach.282 It refused to definitively state that evidence of child molestation could or could not form probable cause to search for child pornography.283 Instead, it held that the courts must make this determination based on the facts presented in the search warrant.284 IV. SOCIAL STUDIES AND CONGRESSIONAL TESTIMONY The following subsections will examine research studies and congressional testimony that have analyzed or discussed whether child pornographers can also be classified as child molesters. Typically, these studies researched either the percentages of child pornographers who also have molested or the percentages of child molesters who also possess child pornography. Subsection IV(A) will discuss those studies and testimony that have linked child pornography and child molestation. In contrast, subsection IV(B) will discuss research studies that have determined there is not a link between child pornography and child molestation.
276. 277. 278. 279. 280. 281. 282. 283. 284.
See id. at 898-99. Id. at 899. See id. See id. See id. Id. (emphasis added). See id. at 895. Id. at 899. See id.
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A. Studies Linking Child Pornography and Child Molestation 1. Self-Reported Contact Sexual Offenses by Participants in the Federal Bureau of Prisons Sex Offender Treatment Program: Implications for Internet Sex Offenders In November 2000, Dr. Andres E. Hernandez presented his paper, which was entitled Self-Reported Contact Sexual Offenses by Participants in the Federal Bureau of Prisons Sex Offender Treatment Program: Implications for Internet Sex Offenders, at the Nineteenth Annual Research and Treatment Conference of the Association for the Treatment of Sexual Abusers (Butner-I).285 This paper centered on research he conducted at the Federal Correctional Institute in Butner, North Carolina.286 Specifically, Dr. Hernandez researched the incidence of sexual offending involving contact crimes (e.g., child sexual abuse and rape) of program participants, including those inmates convicted of non-contact sexual offenses (e.g., possession of child pornography).287 a. Methods Dr. Hernandez studied ninety prisoners who voluntarily participated in the Butner Correctional Facilitys Sex Offender Treatment Program (SOTP).288 Seventy-nine percent (79%) of the prisoners were Caucasian.289 In addition, nineteen percent (19%) were Native American and two percent (2%) were African-American.290 None of the prisoners identified themselves as either Hispanic or Asian.291 The participants ages varied between twenty-three and sixty-six.292 After discussing the racial composition of the participants, Dr. Hernandez stated that he placed them into one of three groups of criminal offense
285. See Andres E. Hernandez, Self-Reported Contact Sexual Offenses by Participants in the Federal Bureau of Prisons Sex Offender Treatment Program: Implications for Internet Sex Offenders, OFFICE OF VIOLENT SEX OFFENDER MANAGEMENT (2000) [hereinafter Hernandez II], http://www.ovsom.texas.gov/docs/Self-Reported-Contact-Sexual-OffensesHernandez-et-al-2000.pdf. 286. See id. at 2. 287. Id. 288. See id. (SOTP is an intensive, residential therapeutic program for male sexual offenders in the Federal Bureau of Prisons.). Id. In addition, the prisoners will also be referred to as participants in this portion of the article. 289. See id. at 3. 290. See id. 291. See id. 292. See id.
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clusters.293 Sixty-two of the participants were categorized as Child Pornographer/Traveler.294 Dr. Hernandez noted that a Child Pornographer/Traveler engaged in crimes that involved both child pornography and enticing a child to cross state lines for sexual intercourse.295 Twentyfour participants were classified as Contact Sex Offenders.296 These individuals either sexually molested or abused a child or adult.297 Lastly, the remaining participants were classified as Other.298 These individuals committed non-sexual crimes.299 While conducting his research, Dr. Hernandez solely studied the ninety participants Presentence Investigation Reports (PSI) and SOTP discharge reports.300 He used the PSI reports to determine the number of sexual offenses each individual had prior to enrolling in the SOTP program.301 The criteria for scoring a contact sexual crime on the PSI were prior convictions or arrests for, and/or self-reported offenses, involving any type of sexual assault or molestation of an adult or child.302 The individual discharge reports were used to determine the number of self-reported contact crimes reported by the prisoners.303 b. Results Dr. Hernandez found that the number of sex abuse victims, in the PSI and discharge reports, of prisoners in the Child Pornographer/Traveler group, were significantly different.304 For instance, prisoners in the Child Pornographer/Traveler group identified fifty-five contact sex crimes in their PSIs.305 This resulted in an average of approximately 0.89 victims per
Id. See id. See id. (Dr. Hernandez classified the production, distribution, receipt, and possession of child pornography as crimes involving child pornography.). Id. 296. See id. 297. See id. 298. See id. Four participants were identified as Other. 299. See id. 300. See id. at 2-3. 301. See id. at 2. 302. Id. 303. See id. 304. See id. at 3 (Subsection IV(a)(1)(i) will only discuss prisoners in the Child Pornographer/Traveler group, because these individuals had an identifiable history with both child pornography and child molestation, which is not true for participants in the other two groups.). 305. See id. at 4 (participants in the Contact Sex Offender group had forty-nine documented sexual crimes on the PSI, and the participants in the Other group had two contact sexual offenses.).
293. 294. 295.
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person.306 However, following their treatment, these offenders admitted to an additional 1379 contact sexual crimes for which they were never detected by or reported to the criminal justice system.307 Hence, once treatment concluded, that average had ballooned to 23.65 victims per offender.308 Interestingly, of the sixty-two subjects in the Child Pornographer/Traveler group, thirty-six reported no history of contact sexual offenses.309 Additionally, fifteen of those thirty-six prisoners reported no additional contact sexual offenses.310 Dr. Hernandez concluded, [i]f these 15 subjects are excluded from the calculations of average victims per offender, the subjects in the Child Porn/Travel group have an average of 30.5 victims per offender . . . .311 c. Discussion Overall, Dr. Hernandez concluded that 76% of participants in the Child Pornographer/Traveler category had engaged in child molestation.312 In fact, these offenders appear to have committed contact sexual offenses at higher rates (i.e., 30.5 victims per offender) than sex offenders convicted of contact sexual crimes (i.e., 9.6 victims per offender).313 Based on this information, he concluded that child pornographers and child molesters had similar characteristics.314 He wrote, [w]hile these Internet sex offenders [child pornographers] have unique patterns of sexual deviance, it appears that many can be equally predatory and dangerous as extra-familial child molesters.315 d. Limitations There were three main limitations to Dr. Hernandezs study. First, his data solely consisted of information obtained from the participants PSIs
306. See id. (Participants in the Contact Sex Offender group averaged 2.04 victims on the PSIs, while the Other group averaged 0.5 victims on their PSIs.). 307. Id. (Participants in the Contact Sex Offender group identified an additional 183 contact sexual crimes after completion of the SOTP program and participants in the Other group identified an additional sixty sexual offenses.). 308. See id. (After completion of the program, the Contact Sex Offender groups average increased to 9.6 and the Other groups average increased to 15.5 victims.). 309. See id. at 5. 310. See id. 311. Id. 312. See id. at 6. 313. Id. 314. See id. 315. Id.
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and SOTP discharge reports.316 Second, he did not speak with the participants of the study.317 Third, this study involved only prisoners at Butner Correctional Facility, which consists of an extremely minute fraction of the general child pornographer population.318 2. Child-Pornography Possessors Arrested in Internet-Related Crimes: Findings from the National Juvenile Online Victimization Study In 2005, Janis Wolak (Wolak), David Finkelhor, and Kimberly J. Mitchell published Child-Pornography Possessors Arrested in Internet-Related Crimes: Findings From the National Juvenile Online Victimization Study.319 This study, which was funded by a grant provided to the National Center for Missing & Exploited Children, was conducted to examine [i]nternet-related sex crimes committed against minors and describe the characteristics of the offenders, the crimes they committed, and their victims.320 a. Methods Wolak conducted this study in two separate phases.321 During the first phase, which was identified as Phase 1, she surveyed 2574 local, county, and state law-enforcement agencies by mail asking if they had made arrests in Internet-related, child-pornography, or sexual-exploitation cases between July 1, 2000 and June 30, 2001.322 Following the completion of Phase 1, she proceeded to Phase 2. During this phase, Wolak interviewed law enforcement officials about the cases they provided in the mail survey.323 Wolak had two reasons for limiting the research to cases that resulted in arrests.324 First, she believed arrests were more likely to involve actual crimes and have more complete information about the crimes, offenders,
See id. at 2. See id. See id. See Janis Wolak et al., Child-Pornography Possessors Arrested in InternetRelated Crimes: Findings From the National Juvenile Online Victimization Study, NATL CTR. FOR MISSING & EXPLOITED CHILDREN, ix (2005), available at http://www.missingkids.com/en_US/publications/ NC144.pdf (any individual references to Wolak should be considered as a reference to all the researchers involved in this study). 320. Id. at vii. 321. See id. at xi. 322. Id. 323. See id. (Two federal agencies also participated in the phone interviews conducted by Wolak.). 324. See id.
316. 317. 318. 319.
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and victims.325 Second, using arrests helped [Wolak] avoid interviewing multiple agencies about the same case.326 In addition, Wolak had specific criteria for the arrests she used while conducting the research.327 First, the arrests had to be the result of a sex crime.328 Second, the sex crime had to involve minors younger than eighteen years old.329 Third, arrests had to be Internet-related.330 Fourth, the arrests had to occur between July 1, 2000 and June 30, 2001.331 b. Results In the publication, Wolak posed several questions.332 One question specifically addressed the percentage of criminal offenders who both possessed child pornography and sexually molested a child.333 i. Dual Offenders: How Often Did Offenders Both Sexually Victimize Children and Possess Child Pornography? During this portion of the study, Wolak discussed some statistics concerning dual offenders.334 However, prior to discussing the statistics, she defined the phrase dual offender.335 According to Wolak, dual offenders were identified as offenders who sexually victimized children and possessed child pornography, with both crimes discovered in the course of the same investigation.336 Wolak then noted that prior studies, which had researched this issue, determined the percentages of dual offenders ranged from 35% to 51%.337 In her study, Wolak identified 40% of the cases involving [child pornography] possession . . . involved dual offenses of [child pornography] possession and child sexual victimization detected in the course of the same investigation.338 She also found that an additional 15% of cases involved
325. 326. 327. 328. 329. 330. 331. 332. 333. 334. 335. 336. 337. 338.
Id. Id. See id. See id. See id. See id. See id. See generally id. See id. at 16. See id. See id. Id. Id. Id.
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child pornography possessors who also attempted to sexually molest children.339 Thus, Wolak concluded [w]hen these cases of attempted child sexual victimization are counted, 55% of the [child pornography] possessors were dual offenders.340 c. Limitations There were several limitations to this study. First, some sources of the information Wolak obtained was from interviews with law enforcement officials.341 She noted there could be numerous errors and biases with this information, because of the law enforcement officials training, professional attitudes, or the adversarial nature of their roles in some of these cases.342 Second, Wolak did not believe this study could be representative of all child pornography offenders.343 In this study, Wolak only limited her research to child pornography offenders arrested for Internet-related sexual offenses against children.344 Thus, she acknowledged that her findings, particularly those regarding dual offenders and [child pornography] possessors who used sophisticated technical methods to store child pornography cannot be interpreted to apply to offenders who were not detected or arrested or those who committed sex crimes that were not Internet-related.345 Third, Wolak noted that her study neither explained nor determined whether possession of child pornography was related to child victimization.346 Hence, she admitted that the results of her research did not determine how possessing child pornography is related to child sexual victimization or whether it causes or encourages such victimization.347 3. Child Pornography Offenses Are a Valid Diagnostic Indicator of Pedophilia In 2006, Michael Seto (Seto), James Cantor, and Ray Blanchard published Child Pornography Offenses Are a Valid Diagnostic Indicator of Pedophilia in the Journal of Abnormal Psychology.348 In this study, Seto
See id. (emphasis by author). Id. See id. at 31. Id. Id. See id. Id. See id. Id. Michael C. Seto et al., Child Pornography Offenses Are a Valid Diagnostic Indicator of Pedophilia, 115 J. ABNORMAL PSYCHOL. 610, 610 (2006) (any individual references to Seto should be considered as a reference to all the researchers involved in this study).
339. 340. 341. 342. 343. 344. 345. 346. 347. 348.
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researched whether child pornography was a valid indicator of pedophilia.349 a. Methods Seto studied data from 685 male patients who were receiving treatment at the Kurt Freud Laboratory of the Centre for Addiction and Mental Health.350 He provided several characteristics of the group.351 First, the mean age of the men was 36.8 years.352 Second, the median age was thirtysix years.353 Third, the median level of education was high school.354 Additionally, Seto noted the racial composition of the group was primarily Caucasian (79.1%).355 However, other races were represented in the sample. For instance, Blacks made up (6.1%) of the sample, Indians or Pakistanis (4.7%), Southeast Asians (2.2%), Aboriginal Canadians (1.5%), Filipino or Pacific Islanders (1.3%), and other (5.1%).356 The 685 male patients had varying criminal histories.357 One hundred of the 685 patients had charges for some type of child pornography offense.358 Fifty-seven of the 100 patients did not have any charges of sexual allegations involving minor children.359 However, forty-three of the 100 patients, had sexual allegations involving one or more children.360
See id. See id. at 611 Kurt Freud Laboratory is located in Toronto, Ontario. Additionally, Setos original sample consisted of 887 men; however, 202 were excluded because they either did not produce a valid result on the phallometric test used in this study or had victims who were fifteen or sixteen years old.. Id. 351. See id. 352. See id. 353. See id. 354. Id. One-third of the men did not graduate from high school and one-third had some post-secondary education. Id. 355. Id. 356. Id. (a patient was classified as other if he was composed of mixed racial heritage). 357. Id. 358. Id. 359. Id. 360. Id. One hundred seventy-eight men did not have a history of child pornography offenses, but did have a history of sexual abuse towards children fourteen years or younger. Id. Similarly, 216 men did not have a history of child pornography offenses but did have a history of sexual abuse towards children seventeen years and older. Id. These victims were classified as adults for purposes of this study. Id. Lastly, 191 men did not have a history of either child pornography or sexual abuse with a child or adult. Id.
349. 350.
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Seto found that child pornography offenders were more likely to be pedophiles than other offenders with child victims.361 Specifically, he determined that child pornography offenders had almost three times the odds (odds ratio = 2.8) of being identified as a pedophile phallometrically than did offenders against children.362 Seto discerned this was true, irrespective of whether the child pornography offender had a history of sexual abuse with or without children.363 c. Discussion Seto provided two explanations for his conclusion that child pornography was an indicator of pedophilia.364 First, he believed a mans pornography preference was a valid indicator of his sexual interests.365 Hence, Seto wrote that, few nonpedophilic men would choose illegal child pornography given the abundance of legal pornography that depicts adults.366 Second, he noted another possible explanation was that the child pornography offenders were less likely to attempt to suppress their responses to stimuli depicting children (or were less successful in suppressing such responses).367 d. Limitations This study had several limitations. First, the subjects were not representative of all child pornographers.368 Here, Seto only studied individuals referred to the Kurt Freud Laboratory.369 Second, there were statistical differences between this group of patients and groups of similar subjects from other studies.370 For instance, Seto noted that this 2005 study found that 24% of [the researchers] sample of 201 child pornography offenders had a prior contact sexual offense history.371
Id. at 612. Id. Id. at 613. Seto wrote that, [i]n fact, child pornography offenders, regardless of whether they had a history of sexual offenses against child victims, were more likely to show a pedophilic pattern of sexual arousal than were a combined group of offenders against children. Id. 364. Id. 365. Id. 366. Id. 367. Id. at 614. 368. See id. 369. Id. 370. See id. 371. Id. This earlier study was conducted in 2005. See M.C. Seto & A.W. Eke, The
361. 362. 363.
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Similarly, data from an unpublished study suggested that approximately one-third of child pornography offenders had prior instances of sexually assaulting minor children.372 However, in this study 43% of the child pornographers had prior charges for sexually assaulting children.373 Third, Seto had limited information about his subjects underlying child pornography offenses.374 Due to this limited information, he was not able to examine whether specific types of content were related to sexual history or phallometric test results.375 4. The Butner Study Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders In 2008, eight years after Butner-I, Dr. Hernandez published a follow-up study with Michael Bourke (Bourke).376 The purpose of the follow-up study was to determine whether child pornography offenders were merely collectors of child pornography at little risk for engaging in hands-on sexual offenses, or if they were contact sex offenders whose criminal sexual behavior involving children, with the exception of Internet crimes, went undetected.377 Dr. Hernandez and Bourke performed this study in a manner nearly identical to Butner-I.378 However, it involved a larger sample and employed more rigorous research methodology.379 a. Methods This study involved 155 child pornography offenders who voluntarily enrolled in a medium-security federal prisons sex-offender specific treatment program (SOTP).380 As part of the SOTP, the sexual offenders engaged in a psychoeduction program lasting sixty weeks that addressed their criminal thinking errors, management of deviant sexuality, emotional self-regulation, victim impact and empathy, social and intimacy skills,
Criminal Histories and Later Offending of Child Pornography Offenders, SEXUAL ABUSE: A J. OF RES. AND TREATMENT at 201-10 (2005). 372. Id. 373. Id. 374. See id. 375. Id. 376. See Michael L. Bourke & Andres E. Hernandez, The Butner Study Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. FAM. VIOLENCE 183 (2009) [hereinafter Hernandez III]. 377. Id. 378. See id. at 185. 379. Id. 380. Id.
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communication skills, relapse prevention, and community re-entry skills.381 In addition to the sixty week program, these offenders also engaged in both group and individual counseling.382 The racial composition of the group was overwhelmingly Caucasian (95%).383 The remaining offenders were composed of three Native Americans, three AfricanAmericans, one Asian-American, and one Hispanic.384 Dr. Hernandez and Bourkes sources of information came from three main groups of documents. First, as in Butner-I, Dr. Hernandez and Bourke used the offenders PSI reports.385 As previously written, these reports contained the offenders criminal histories.386 Second, they used the offenders psychosexual history questionnaires.387 In these unpublished questionnaires, the sexual offenders self-reported their demographic information and describe[d] their developmental, psychosocial, criminal, and sexual histories.388 Lastly, Dr. Hernandez and Bourke used polygraph examination reports, which were administered within fourteen months into treatment.389 Eighty offenders took polygraph examinations.390 b. Results Dr. Hernandez and Bourke noted that prior to entering the SOTP, 115 of the offenders (74%), did not have any prior history for hands-on abuse of children.391 In contrast, forty offenders (26%) reported a prior history with hands-on abuse.392 When treatment ended, there was a significant increase in the number of subjects who reported hands-on abuse.393 More specifically, [b]y the end of treatment, 24 subjects (15%) denied they committed hands-on sexual abuse, and 131 subjects (85%) admitted they had at least one hands-on sexual offense . . . .394 This was a 59% increase in the number of child por-
Id. Id. Id. Id. The participants ages ranged from twenty-one to seventy-one years old. Their level of education ranged from middle school to doctoral degrees . . . . Id. 385. Id. at 186. 386. Id. 387. Id. 388. Id. 389. Id. 390. Id. 391. See id. at 187. 392. Id. 393. See id. at 185. 394. Id. at 187.
381. 382. 383. 384.
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nography offenders that reported hands-on abuse.395 c. Discussion Overall, Dr. Hernandez and Bourke concluded that a significant number of Internet sex offenders in [their] sample acknowledged committing acts of hands-on abuse.396 In coming to this conclusion, they provided further analysis about the twenty-four offenders who denied committing hands-on offenses.397 They stated that only nine of these twenty-four subjects submitted to a polygraph examination.398 Of these nine subjects, only two passed the examination.399 In other words, less than 2% of subjects who entered treatment without known hands-on offenses were verified to be just pictures cases.400 d. Limitations Dr. Hernandez and Bourke identified some limitations to their study. For example, they noted that all their subjects had volunteered for this study.401 Thus, as they recognized, [i]t is unknown whether, or in what manner, child pornographers who self-select for treatment differ from offenders with similar offenses who decline to participate in such treatment programs.402 They also discussed any potential issues with over-reporting.403 Dr. Hernandez and Bourke provided three reasons over-reporting did not impact their study.404 First, they noted that prior studies consistently indicated that criminal offenders often underreport.405 Second, the offenders had to complete their criminal sentences whether the offenders over-reported or under-reported.406 Third, over one-half of the offenders submitted to polygraph examinations, which assessed both under and overreporting . . . .407
395. 396. 397. 398. 399. 400. 401. 402. 403. 404. 405. 406. 407.
Id. Id. See id. at 188. See id. See id. Id. See id. at 189. Id. See id. See id. See id. Id. Id.
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B. Congressional Testimony Linking Child Molestation and Child Pornography 1. Testimony of Mr. Michael Heimbach On May 1, 2002, Michael Heimbach (Heimbach), who was Unit Chief for the FBIs Crimes Against Children Unit, provided testimony to the United States House of Representatives concerning the prosecution of child pornography offenders.408 He organized his testimony by answering several questions posed by members of the House of Representatives. Three of these questions related to the correlation between child molestation and child pornography.409 a. Whether There is Any Connection Between Those Who Trade or Possess Child Pornography and Those Who Molest Children Heimbach believed there was a connection.410 In supporting this belief, he referenced several different studies that examined and identified a relationship between child pornography and child molestation.411 For instance, one Internet investigation, which was called Operation Candyman, discovered over 7200 child pornography traffickers and resulted in ninety arrests.412 [O]f the 90 people arrested . . . for their participation in the child pornography e-group, 13 of them who chose to make inculpatory statements admitted to molesting a combined total of 48 children.413 Heimbach also referenced an investigation conducted by the United States Postal Inspection Service.414 This investigation determined that nearly 40% of child pornographers were also child molesters.415 Thus, Heimbach noted that Postal Service Investigators concluded that a frighteningly
408. See Threats Against the Protection of Children: Hearing Before the Subcomm. on Crime, Terrorism and Homeland Sec. of the H. Comm. on the Judiciary, 107th Cong. (2002) (testimony of Michael J. Heimbach, Unit Chief, Crimes Against Children Unit, Fed. Bureau of Investigation, U.S. Dept of Justice), available at 2002 WL 844877 [hereinafter Threats Against Children]. 409. See id. 410. See id. 411. Id. 412. Id. (These 7200 individuals were located world-wide.). 413. Id. 414. Id. 415. Id. Heimbach concluded this portion of his testimony by discussing Butner-I. During his testimony, Heimbach noted that the Butner-I study concluded that 76 percent of the child pornographers or travelers (those who travel or intend to travel interstate for the purpose of having sex with a minor) . . . admitted to having committed contact sex crimes which went undetected by the criminal justice system. Id.
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high percentage of the child pornography offenders investigated were also involved in the sexual molestation of children.416 b. Whether Child Molesters Use Child Pornography to Seduce Children Heimbach also believed child molesters used child pornography to seduce children into engaging in sexual intercourse.417 He testified that agents, with the FBIs Innocent Images Task Force, who posed as children during Internet investigations, determined that sexual predators routinely send images of child pornography to them as part of the grooming process to increase the likelihood of a sexual encounter.418 Typically, the child molesters child pornography would consist of children who were the same age as the agents cover and engaging in sexual activity with an adult male.419 By sending child pornography in this manner Heimbach believed child molesters were attempting to normalize sexual intercourse between children and adults.420 Heimbach also identified other reasons child molesters used child pornography.421 For example, he noted that it demonstrated sexual acts to children, lowered the sexual inhibitions of children, desensitized children to sexual intercourse, sexually aroused children, and groomed children into engaging in sexual relationships with adults.422 c. Whether Child Pornography Seduces Child Pornographers to Molest Children Heimbach believed child pornography encouraged offenders to molest children.423 In fact, he recognized that child pornographers often traded with other child pornographers because it normalized their behaviors and offenses.424 Specifically, Heimbach testified that child pornographers feel they are part of a vast network of like-minded people who believe it is acceptable to engage in sexual fantasies about children, thus lowering their inhibitions about acting on their fantasies and increasing the likelihood that they will actually molest children.425
416. 417. 418. 419. 420. 421. 422. 423. 424. 425.
Id. See id. Id. Id. See id. See id. Id. See id. Id. Id.
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Interestingly, Heimbach admitted that he had no knowledge of any real evidence that child pornography alone induces a sexual attraction to children where the offender lacks a sexual predisposition for children.426 However, even though Heimbach made this observation, he testified that child pornography could affect predisposed offenders.427 For instance, it could increase child molesters sexual fantasies about sexual intercourse with children, normalize molesters attraction to children, or cause the molesters to become sexually aroused when thinking about having intercourse with children.428 2. Testimony of Mr. Ernie Allen to the United States Senate Committee on the Judiciary Several months later, on October 2, 2002, Ernie Allen (Allen), President and Chief Executive Officer for the National Center for Missing & Exploited Children, provided testimony to the United States Senate Committee on the Judiciary.429 The purpose of his testimony was to address the Supreme Courts ruling in Ashcroft v. Free Speech Coalition.430 In addition, a portion of his testimony focused on his belief that there is a correlation between child pornography and child molestation.431 Allens testimony, like that of Heimbach, referenced a number of studies that examined the link between child pornography and child molestation.432 For example, he noted that a 1988 study found not only that 67% of child molesters admitted to using hard-core sexual materials, but more importantly, that 53% of child molesters reported intentionally viewing hardcore sexual materials in preparation for molestation.433 Allen then provided the Committee with several statistics gathered by various law enforcement departments.434 For instance, he stated that the United States Postal Service found 80% of child pornographers were also sexually abusing children.435 Similarly, a study conducted by the Chicago
Id. See id. Id. Stopping Child Pornography: Protecting our Children and the Constitution: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 58 (2nd Sess. 2002) (statement of Ernest E. Allen, President & Chief Executive Officer, National Center for Missing & Exploited Children). 430. See id.; Ashcroft v. Free Speech Coalition, 535 U.S. 234, 273 (2002) (holding that criminalizing the possession of virtual child pornography violated the First Amendment). 431. See Stopping Child Pornography, supra note 428. 432. See id. at 65. 433. Id. 434. See id. 435. Id.
426. 427. 428. 429.
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Police Department determined that in almost 100% of their annual child pornography arrests, detectives found photos, films, and videos of the arrested individual engaging in sex with other children.436 In addition, Allen also testified that two separate Internet Crimes Against Children Task Forces (ICAC) also researched this issue.437 A Pennsylvania ICAC found that 51% of child pornography offenders either sexually abused a child or was actively sexually molesting a child.438 Likewise, a Dallas-based ICAC determined 32% of their child pornography offenders were either actively abusing a child or had abused a child in the past.439 C. Studies Not Linking Child Pornography and Child Molestation 1. Pedophilia on the Internet A Study of 33 Convicted Offenders in the Canton of Lucerne In August 2001, the Swiss Federal Police began Operation Genesis.440 The purpose of Operation Genesis was to investigate Swiss inhabitants who had visited Landslide Productions Inc. (Landslide), which was an American website that allowed people to view child pornography.441 Overall, 1300 Swiss inhabitants were arrested as a result of Operation Genesis.442 Thirty-three of those 1300 Swiss inhabitants lived in the Canton of Lucerne.443 Following the completion of Operation Genesis, Andreas Frei (Frei), Nuray Erenay, Volker Dittmann, and Marc Graf published a study that sought to determine if child pornographers and child molesters shared similar characteristics.444 a. Methods Originally, thirty-eight inhabitants of the Canton of Lucerne were identi-
Id. Id. See id. Id. Like Heimbach, Allen discussed Butner-I, reiterating Dr. Hernandez found 76% of convicted child pornography offenders had sexually abused children). Id. at 66. 440. See Andreas Frei, Nuray Erenay, Volker Dittmann & Marc Graf, Paedophilia on the Internet - A Study of 33 Convicted Offenders in the Canton of Lucerne, 135 SWISS MED. WKLY. 488, 489 (2005), available at http://www.smw.ch/docs/pdf200x/2005/33/smw11095.pdf. 441. See id. 442. See id. 443. See id. at 490. 444. Id. (any individual references to Frei should be considered as a reference to all the researchers involved in this study).
436. 437. 438. 439.
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fied as having visited Landslide.445 Of those thirty-eight individuals, researchers had access to only thirty-five of their police files.446 Of the thirtyfive remaining individuals, two were excluded because an examination of their hard drives did not reveal any evidence of child pornography.447 Thus, the overall number of individuals analyzed by Frei was thirty-three.448 While reviewing these thirty-three police files, Frei focused on several different variables.449 First, he examined sociodemographic variables such as age, employment, and marital status.450 Second, he examined [c]riminological variables like motive, prior convictions, insight concerning illegality and legal consequences.451 Third, he examined psychosexual variables.452 These variables were used to determine if the individuals had any psychiatric disorders.453 Lastly, he examined the time span it took the thirty-three individuals to obtain the illegal material.454 b. Results Frei separated his results by the variables he analyzed in the police reports.455 First, when discussing the sociodemographic data, he noted that all the individuals were males with a mean age of 39.8 years.456 Second, after analyzing the criminological data, Frei determined that seventeen offenders admitted to committing another criminal offense.457 In contrast, fifteen denied committing any other offenses.458 Third, while discussing the psychosexual data he noted [t]here were no hints for prior psychiatric treatment in the files.459 Lastly, he found the individuals took an average of 1 to 1320 hours to obtain their illegal pornography.460
See id. See id. (the other three files were prosecuted in other cantons). See id. See id. See id. See id. Id. See id. See id. Frei measured the individuals psychosexual variables by assessing the pornographic material concerning the kind of deviant sexual activity depicted and the severity of the assaults on the children . . . . Id. 454. See id. at 490-91. 455. See generally id. at 491. 456. See id. at 491. 457. See id. 458. Id. One suspect, who is still abroad, could not be interrogated personally. Id. 459. Id. at 492. 460. See id.
445. 446. 447. 448. 449. 450. 451. 452. 453.
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The study had two significant findings.461 First, unlike child molesters, the child pornography offenders in this study were either intelligent or had professional jobs.462 In contrast, prior studies had shown child molesters had either low intelligence or an income of less than $25,000 per year.463 Second, Frei also found that the individual police files did not contain any evidence of child molestation.464 He wrote, [i]n our sample of offenders . . . no evidence of serious crimes or contact-offences could be found in the files.465 Thus, Frei made two conclusions.466 First, he determined that the Internet had created an entirely new crimethe consumption of illegal pornography.467 Second, he concluded that child pornography was not necessarily connected to contact sexual offenses.468 d. Limitations Frei did not have any direct contact with any of the individuals he studied. Instead, he solely examined the police files of those offenders.469 Additionally, his research was solely limited to individuals living in the Swiss Canton of Lucerne.470 Hence, applying the results of this research to all child pornographers could be problematic. 2. The Consumption of Internet Child Pornography and Violent and Sex Offending In 2009, Jrme Endrass (Endrass), Frank Urbaniok, Lea Hammermeister, Christian Benz, Thomas Elbert, Arja Laubacher, and Astrid Rossegger published an article that analyze[d] the characteristics of a sample of child pornography users and the proportion of those who subsequently reoffended with hands-on and hands-off sex offenses.471
See id. See id. See id. See id. (this was true except for the one person who was missing when Frei performed this study). 465. Id. 466. See id. 467. Id. 468. See id. at 488. 469. See id. at 490. 470. See id. 471. Jerome Endrass et al., The Consumption of Internet Child Pornography and Violent and Sex Offending, BMC PSYCHIATRY, July 14, 2009, at 1, 3, available at http://www.biomedcentral.com/content/pdf/1471-244X-9-43.pdf. Any individual references to Endrass should be considered as a reference to all the researchers involved in this study.
461. 462. 463. 464.
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Like the Lucerne study, this research centered on information obtained from Switzerlands Operation Genesis.472 As previously written, Operation Genesis allowed Swiss police to identify over 400 Swiss citizens who visited an illegal pornography website owned by Landslide.473 Here, the researchers only studied 231 of the 400 individuals, because this was the total number of people charged with child pornography consumption as a result of Operation Genesis.474 Additionally, since this study centered on the offenders prior and subsequent criminal convictions, the researchers chose a specific cut-off point and follow-up point to measure recidivism.475 2002 was the cut-off point, with any convictions prior to this date being previous convictions. The follow-up was in 2008, therefore resulting in a six year follow-up period, during which time all new offenses were deemed to be re-offending.476
Prior to discussing their methodology, the authors discussed prior studies that had addressed this issue, as well as the three separate approaches these studies used to examine it. First, Endrass noted there are studies that examine the role of child pornography consumption on offending in samples of hands-on sex offenders. Id. at 2. An example of this type of research was done by Kingston, Fedoroff, Firestone, Curry, and Bradford. See id. They found that the consumption of illegal pornography was a relevant risk factor, namely that those offenders who had consumed illegal pornography were more likely to re-offend irrespective of their risk-level of recidivism. Id. In addition, Howitt, using the same approach, found that hands-on sex offenders received sexual stimulation from child pornography, adult pornography, newspapers, and magazines. See id. Thus, he concluded it is not possible to establish an association between hands-on sex offenses and the consumption of child pornographic material. Id. Second, researchers examined the prior convictions for both child pornographers and hands-on offenders. See id. For instance, Webb, Craissati and Keen found that more hands-on offenders had more prior convictions for sexual offenses than child pornography offenders. See id. However, in a study conducted by Frei he found none of the child pornography consumers had a criminal record. Id. The third approach involved researchers examining offenders criminal records after being convicted of child pornography offenses. See id. at 3. For example, Seto and Eke found that child pornography offenders recidivism rates were 0.8% for hands-on and 3.9% for hands-off sex offenses. Id. Additionally, Riegel found that child pornography rarely or never encouraged Boy-Attracted Pedosexual Males (BPM) to molest children. Id. Thus, Riegel interpreted this finding as an indication that the consumption of child pornography alone is not a sufficient risk factor for committing a hands-on sex offense. Id. 472. See id. 473. See id. 474. Id. 475. See id. 476. Id.
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Endrass measured recidivism by using two separate definitions.477 First, under the strict definition of recidivism, recidivism was assumed only if new convictions subsequent to the index offense (child pornography consumption) were registered in the criminal records.478 He found that none of the offenders were convicted of a hands-on sex offense when the strict definition was applied.479 In fact, only 3% of all subjects re-offended under the strict definition.480 In detail, 2.6% (n = 6) of the study sample recidivated with a hands-off sex offense (consumption of illegal pornography) and 0.4% (n = 1) with a violent offense (bodily harm).481 The broad definition of recidivism included not only convictions, but also criminal investigations and criminal charges.482 The percentage of recidivism slightly increased when he applied the broad definition.483 Specifically, only 0.8% of the individuals were being investigated, charged or convicted for a hands-on sex offense, namely child sexual abuse.484 In addition, 1.3% recidivated with a violent criminal offense and 3.9% were investigated, charged or convicted for hands-off sex offenses, all of which were due to illegal pornography possession.485 c. Discussion Endrass determined that a majority of the child pornographers did not have a history of committing sex offenses.486 In fact, he wrote that [b]efore the police operation, 3.5% of the study sample had prior convictions for a hands-off sex offense and 1% (n = 2) for hands-on sex offenses involving child sexual abuse.487 Additionally, Endrass noted his findings were significantly different than the findings of Seto and Eke where they determined that 24% of their subjects had a history of committing hands-on sex offenses.488 Endrass believed the differences between these two studies reiterated his belief that the current studies have not established a clear and definite connection be477. 478. 479. 480. 481. 482. 483. 484. 485. 486. 487. 488.
Id. at 3. Id. See id. at 4. See id. Id. See id. at 3. See id. at 4. Id. Id. Id. at 5. Id. See id.
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tween child sexual assault and child pornography.489 Thus, he opined that there should be additional research to understand this distinct group of sex offenders.490 d. Limitations Endrass identified only one limitation to his study.491 He recognized that the only individuals who could gain access to Landslide had to know English and possess a credit card.492 Due to these two factors, his subject pool was limited. Moreover, even though Endrass did not specify it, the results of his study are limited because he only researched people who lived in Switzerland. V. ANALYSIS The following subsections will argue why evidence of child molestation does not form probable cause to search for child pornography. First, in subsection V(A) I argue that the research concerning the correlation between child pornography and child molestation is in its infancy.493 Second, subsection V(B) discusses the inconclusive correlation between child molestation and child pornography.494 Third, in subsection V(C), I argue that both child pornography and child molestation are separate and distinct criminal offenses.495 Hence, evidence of one should not be used to form probable cause for another. Lastly, subsection V(D) discusses Dr. Hernandezs criticism of his Butner study.496 A. Research Studying the Correlation Between Child Pornography and Child Molestation is in its Infancy Several researchers, who have studied the correlation between child molesters and child pornographers, have recognized that this specific area of study is very new.497 For example, Dr. Hernandez, who authored both Butner-I and Butner-Redux, has recognized that additional research was needed in order to fully understand Internet based sex offenders, such as posses-
489. 490. 491. 492. 493. 494. 495. 496. 497.
See id. Id. at 3. See id. at 6. See id. See infra Part V.A. See infra Part V.B. See infra Part V.C. See infra Part V.D. See Hernandez I, supra note 2, at 5; see also Hernandez III, supra note 376, at
190.
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sors of child pornography.498 Specifically, in one of his position papers, he wrote, the relationship between the online sexual exploitation of children and contact sexual crimes against children is in its infancy.499 He even recognized that psychologists had just recently begun to recognize that [child pornography] offenders present with a unique set of . . . psychological characteristics.500 Dr. Hernandez expressed similar sentiments a year earlier in Butner-Redux when he noted that the correlation between child pornography and child molestation was very complex and in need of future research before it could be fully understood. 501 Additionally, Dr. Hernandez also recognized that the current research was in its infancy because it was conducted solely among [child pornography] offenders entering the criminal justice system or in clinical settings.502 Because these prior studies were done in clinical settings, with a limited number of child pornography offenders, Dr. Hernandez reasoned their findings could not be applied to all offenders.503 Seto also recognized the limitation of conducting research solely in clinical settings.504 He wrote, [i]t would be very interesting to determine whether child pornography possession is still a valid indicator of pedophilia in a nonclinical and nonforensic sample.505 Dr. Hernandez and Seto were not the only people who acknowledged the limited research concerning the correlation between child molestation and child pornography.506 For instance, Endrass noted that prior to his study, only one study that [had] analyzed the association between child pornography consumption and the subsequent perpetration of hands-on sex offenses.507 Michael Heimbach, the former Unit Chief for the FBIs Crimes Against Children Unit, also admitted the current research was in its infancy.508 While testifying before the United States House of Representatives, Heimbach stated that he did not have knowledge of real evidence that
Hernandez I, supra note 2, at 5 Id. Id. See Hernandez III, supra note 376, at 190. Hernandez I, supra note 2, at 4. See id. Overall, Dr. Hernandezs views about the lack of a correlation between child pornography and child molestation has been consistent for the past several years. However, most importantly, Dr. Hernandez, the author of the studies, which the Government most heavily relies upon to establish a correlation between child pornography and child molestation, has twice acknowledged this area of research is in its early stages. 504. Seto, supra note 348, at 614. 505. See id. 506. See Endrass, supra note 471, at 3. 507. See id. 508. Threats Against Children, supra note 408.
498. 499. 500. 501. 502. 503.
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child pornography alone induces a sexual attraction to children where the offender lacks a sexual predisposition for children.509 B. There is Not a Conclusive Correlation Between Child Pornography and Child Molestation The studies that have addressed the connection between child pornography and child molestation are inconclusive about any correlation between both criminal offenses. In fact, several of these studies have identified different percentages of dual offenders.510 For example, in Butner-I Dr. Hernandez determined that 76% of offenders were dual offenders.511 In Butner-Redux this percentage increased to 85%.512 However, in contrast Michael Heimbach testified that a United States Postal Inspection investigation discovered 40% of child pornographers were dual offenders.513 This figure was quite smaller than the 100% of dual offenders identified by the Chicago Police Department.514 Likewise, Wolak concluded that 55% of child pornographers were dual offenders.515 Even research that did not link child pornography and child molestation had varying percentages of dual offenders.516 For example, in Endrass study, he found that 1.0% of the child pornographers had a history of child molestation.517 Similarly, using a strict definition of recidivism, Endrass determined that none of the child pornography offenders recidivated with a hands-on offense.518 However, under the broad definition of recidivism this percentage slightly increased to 0.8%.519
Id. See Hernandez II, supra note 283, at 4; Hernandez III, supra note 376, at 187. Hernandez II, supra note 286, at 6. Hernandez III, supra note 376, at 187. The author recognizes that the sample sizes for these studies were different. Id. at 185. However, the arguments in this section are being made to provide a general idea of the disparity in percentages of dual offenders identified in those research studies. 513. Threats Against Children, supra note 407. 514. Id. 515. See Wolak, supra note 319 at 30. This percentage combined actual sexual assaults and attempted sexual assaults. Id. 516. See Endrass, supra note 471, at 4. 517. See id. 518. See id. 519. See id.
509. 510. 511. 512.
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C. Child Pornography and Child Molestation are Separate Criminal Offenses 1. Congress Has Recognized that Child Pornography and Child Molestation are Separate Criminal Offenses By refusing to recognize the differences between child pornography and child molestation, law enforcement officials are attempting to usurp an already established legal distinction between them. In other words, law enforcement officials should recognize that Congress has enacted separate statutes for child pornography and child molestation because they are separate and distinct criminal offenses. In fact, both statutes use remarkably different language. For instance, 18 U.S.C. 2252A(a)(5)(B) criminalizes the possession of child pornography.520 Specifically, under 2252A(a)(5)(B) a defendant is guilty of possession of child pornography if he or she:
[K]nowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer. . . .521
Similarly, 18 U.S.C. 2252A(a)(1) criminalizes knowingly transporting child pornography in foreign or interstate commerce.522 In addition, 2252A also criminalizes the receipt, transportation, and production of child pornography.523
In contrast, the federal statute criminalizing the sexual molestation or sexual assault of a minor is located in 18 U.S.C. 2241(c).524 Under 2241(c) it is illegal for an adult to knowingly engage[] in a sexual act with another person who has not attained the age of 12 years, or knowingly engage[] in a sexual act . . . with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do
See 18 U.S.C. 2252A(a)(5)(B) (2006). Id. See 18 U.S.C. 2252A(a)(1). See 18 U.S.C. 2252A(a)(2)(A)-(B) (receipt); 18 U.S.C. 2251(a) (production); 18 U.S.C. 2252A(a)(1) (transportation). 524. See 18 U.S.C. 2241(c) (2006).
520. 521. 522. 523.
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so. . . .525
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The elements required for a successful prosecution of both offenses are also significantly different. To have a successful prosecution under 2252A(a)(5)(B), the Government must prove a defendant: (1) knowingly possessed child pornography that (2) was mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.526 However, to prove a violation of 2241(c), the Government needs to show: (1) the defendant intended to engage in a sexual act with the victim; (2) the victim was under the age of twelve; and (3) the defendant crossed a state line with the intent to engage in a sexual act with a person who was under the age of twelve years.527 Additionally, there are different penalties for violating either 2252A(a)(5)(B) or 2241(c). For example, a violation of 2241(c) could result in a fine and imprisonment for not less than 30 years or for life.528 The penalties identified in 2252A(a)(5)(B) are different.529 For instance, under 2252A(b)(1) a violation of 2252A(a)(5)(B) could result in a fine and a term of imprisonment not less than 5 years and not more than 20 years . . . .530 Under 2252A(b)(2), the penalty increases drastically if the person has a prior conviction.531 Specifically, the term of imprisonment increases to not less than 15 years nor more than 40 years.532 By enacting separate statutes addressing both child pornography and child molestation, Congress has recognized they are distinct and separate criminal offenses. In other words, if Congress viewed child molesters and child pornographers the same, it could have criminalized both sexual offenses in the same statute. In addition, it could have placed violations for both offenses in the same statute. Instead, Congress chose to treat each criminal offense separately. Thus, since both offenses are distinct and separate, it is inappropriate for law enforcement officials to continue to use evidence of one crime (child molestation) [to] search for evidence of an entirely different crime (child pornography).533
525. Id.; see also 18 U.S.C. 2241 (2006) (Aggravated sexual abuse); 18 U.S.C. 2242 (2006) (Sexual abuse); 18 U.S.C. 2243 (2006) (Sexual abuse of a minor or ward); 18 U.S.C. 2244 (2006) (Abusive sexual contact). 526. 18 U.S.C. 2252A(a)(5)(B). 527. See 18 U.S.C. 2241(c). 528. Id. 529. See 18 U.S.C. 2252A(b)(1)-(2). 530. 18 U.S.C. 2252A(b)(1). 531. See 18 U.S.C. 2252A(b)(2). 532. Id. (the prior conviction must be for a violation under this section). 533. See United States v. Hodson, 543 F.3d 286, 287 (6th Cir. 2008).
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2. A Majority of the Federal Court of Appeals Have Recognized that Child Pornography and Child Molestation are Separate Criminal Offenses Several federal courts of appeals have expressed concern with law enforcement officials using search warrants with evidence of one crime (child molestation) [to] search for evidence of an entirely different crime (child pornography).534 Currently, five federal courts of appeals have addressed the correlation between child pornography and child molestation.535 Of those five courts, the Second, Fourth, and Sixth circuits have all determined that evidence of child molestation alone does not create probable cause to search for child pornography.536 These courts have come to this conclusion because they have determined child pornography and child molestation are separate crimes.537 For example, in Hodson the Sixth Circuit Court of Appeals disapproved of the police obtaining an affidavit that established probable cause to search for evidence of one crime (child molestation), but designed and requested a search for evidence of an entirely different crime (child pornography).538 Similarly, in Falso the Second Circuit Court of Appeals expressed its agreement with this premise.539 In that case the court held the Government could not use evidence of child molestation to create probable cause to search for child pornography simply because they both were criminal offenses.540 Lastly, the Fourth Circuit has held that evidence of child molestation alone does not support probable cause to search for child pornography.541 3. Dr. Hernandez Believes Neither Butner-I nor Butner-Redux Stand for the Proposition that Child Molestation is Correlated to Child Pornography Many of the advocates who have supported the belief that child pornography is correlated with child molestation have relied on Butner-I and Butner-Redux.542 Generally, these individuals believe those studies have provId. See Dougherty v. City of Covina, 654 F.3d 892, 895 (9th Cir. 2011); United States v. Doyle, 650 F.3d 460, 460 (4th Cir. 2011); United States v. Colbert, 605 F.3d 573, 573 (8th Cir. 2010); United States v. Falso, 544 F.3d 110, 110 (2d Cir. 2008); Hodson, 543 F.3d at 286. 536. See Doyle, 650 F.3d at 472; Falso, 544 F.3d at 122; Hodson, 543 F.3d at 293. 537. See Falso, 544 F.3d at 122; Doyle, 650 F.3d at 472; Hodson, 543 F.3d at 293. 538. Falso, 544 F.3d at 122; Doyle, 650 F.3d at 472; Hodson, 543 F.3d at 289. 539. See Falso, 544 F.3d at 123. 540. Id. 541. Doyle, 650 F.3d at 472. 542. See Threats Against Children, supra note 408; see also Stopping Child Pornogra534. 535.
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en there is a correlation between the two criminal offenses.543 However, this view is not shared by Dr. Hernandez.544 In April 2009, less than six months after the publication of ButnerRedux, Dr. Hernandez presented a position paper where he criticized law enforcement officials reliance on a biased interpretation of [his] study (i.e., to prove that the majority of [child pornography] offenders are child molesters).545 He wrote, [s]ome individuals have misused the results of Hernandez (2000) and Bourke and Hernandez (2009) to fuel the argument that the majority of [child pornography] offenders are indeed contact sexual offenders, and therefore, dangerous predators. This is simply not supported by the scientific evidence. 546 In fact, Dr. Hernandez believed that the current research was inconclusive about any relationship between the two offenses.547 Moreover, he recognized that his Butner studies could only be applied to a limited number of child pornographers.548 Thus, he concluded that by relying on a biased interpretation of his study, law enforcement officials were refusing to acknowledge that the Butner findings could not be generalized to all [child pornography] offenders.549 D. Leon Good-Faith Exception In United States v. Leon, the Supreme Court held that the Fourth Amendments exclusionary rule does not prohibit the use of evidence obtained with an invalid search warrant if the government officials had an objectively reasonable reliance that the warrant was valid.550 However, a defendant can establish that the Leon good-faith exception supports suppression of evidence if: (1) the issuing judge abandoned his or her detached and neutral role; (2) the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; (3) the issuing judge or magistrate was misled; or (4) the warrant is so facially deficient that the executing officer could not reasonably believe it was valid.551 Typically, defendants rely on the second exception when asking the court to suppress evidence of child pornography seized with a warrant that
phy, supra note 426. 543. See Hernandez I, supra note 2, at 5. 544. See Hernandez I, supra note 2, at 5. 545. See Hernandez I, supra note 2, at 5 546. Hernandez I, supra note 2, at 4. 547. Hernandez I, supra note 2, at 5. 548. See Hernandez I, supra note 2, at 9. 549. Hernandez I, supra note 2, at 5. 550. United States v. Leon et al., 468 U.S. 897, 922 (1984). 551. Id. at 922-24.
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only contained evidence of child molestation.552 Courts should find that this exception supports suppression of evidence because it is unreasonable for government officials to rely on a warrant that contains evidence of child molestation when it is used to search for child pornography. First, there is no clear identifiable correlation between child pornography and child molestation. Indeed, several researchers and courts of appeals have recognized there is not an identifiable correlation between both offenses. Second, both child pornography and child molestation are separate and distinct crimes. Thus, evidence of one cannot be used to form probable cause to search for evidence of the other. VI. CONCLUSION Child pornography and child molestation offenses are some of the most reprehensible and vile crimes committed by sex offenders, so it is easy to understand law enforcement officials passion and dedication for swiftly identifying and arresting individuals suspected of committing both offenses. However, these passions must not interfere with the constitutional protections provided by the Fourth Amendment. As this paper has argued, there is no correlation between child pornography and child molestation. Hence, magistrates should not issue warrants that solely contain evidence of child molestation when used to search for child pornography. First, current studies have not determined if child pornography is correlated with child molestation. In fact, research investigating the correlation between these two sexual offenses is in its infancy.553 Second, child pornography and child molestation are separate criminal offenses, which require different elements of proof. Third, a majority of courts have determined both offenses are not correlated. Thus, only once this unique group of sex offenders is more thoroughly studied can the courts determine if they are in fact similar to or the same as child molesters.
552. Some defendants have raised arguments using other Leon good-faith exceptions; however, for purposes of this article, only the exception dealing with probable cause is discussed. 553. Hernandez I, supra note 2, at 5.

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JONES FINAL

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CRIMINAL AND CIVIL CONFINEMENT

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55. 56. 57. 58.

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84. 85. 86. 87. 88. 89. 90. 91. 92.

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134. 135. 136. 137. 138. 139. 140. 141.

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CRIMINAL AND CIVIL CONFINEMENT or neutrality;

151. 152. 153.

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CRIMINAL AND CIVIL CONFINEMENT d. Significance of United States v. Doyle

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222. 223. 224. 225. 226. 227. 228. 229.

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CRIMINAL AND CIVIL CONFINEMENT i. The Search Warrant Affidavit

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267. 268. 269. 270.

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