Child Erotica Does Not Constitute Probable Cause for Child Pornography

The Fourth Amendment is known colloquially for its prohibition on search and seizure absent a warrant. This Amendment also provides that, “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.” In finding probable cause, an issuing judge must have more evidence than mere suspicion, but less evidence than what is necessary to convict. Basically, probable cause is met when the magistrate makes “a practical, common-sense decision that, given all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Further, a suspect’s residence has the utmost protection from governmental intrusion as “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”

If a warrant is executed without probable cause, that evidence will usually be suppressed. However, if that evidence is pursuant to “good-faith” on behalf of the executing officer, it can fall under the good-faith exception and still make it into evidence. The good-faith exception is a presumption that officers acted reasonably in executing the warrant.

In a 10th Circuit Appeals Court decision, U.S. v. Edwards, the court analyzed a search warrant affidavit on the basis of the defendant’s appeal of the lower court’s denial of his motion to suppress. Mr. Edwards used a website to upload and comment on suspicious, sexually suggestive images of a child that appeared to be ten years old. Officer Cornwell, the officer leading the investigation stated in his training and experience, “most individuals who collect child pornography are sexually attracted to children” and this who possess “child pornography” are “highly likely” also to possess legal “child erotica” and to participate in online forums “catering to their sexual preference for children thereby providing a sense of acceptance and validation within a community.” The government admitted that there was no observation of Mr. Edwards posting or viewing child pornography as described in the statute, which defines “child pornography” as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

The Appellate Court held that a defendant posting child erotica and/or comments suggesting a sexual attraction to a child did not establish the probable cause necessary to issue a warrant to search the defendant’s home for child pornography. The court explained that the fact that child pornography collectors also collected child erotica, participated in certain online forums relating to child erotica, and shared other common characteristics did not support an inverse conclusion that possessors of child erotica and participants in such online forums were also child pornography collectors.

Despite the court eventually affirming the district court’s denial because of the good faith exception to exclusion of evidence, the court held that a connection between behaviors of possessors of child pornography and possessors of child erotica did not establish probable cause to issue the warrant.

To read this case in full, see:

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