Case o' The Week: Singing Vikings, Spam, and Search Warrants - Kelley

A very disappointing decision salvages a suppressed computer search for child porn -- despite little or no evidence that the defendant solicited child-porn e-mails discussed in the search warrant affidavit. United States v. Kelley, __ F.3d __, 05-10547, Slip. Op. at 2285 (9th Cir. Mar. 1, 2007), decision available here. (Justice O'Connor, left, sitting by designation).

Players: Case fought tooth & nail by ND Cal AFPD Elizabeth Falk.

Facts: First, Kelley’s AOL account was searched, then his home computer. Slip op. at 2289. The second (computer) search warrant is the subject of this appeal by the government. Police had investigated a child porn distributer in Germany. Id. Four e-mails on this German’s computer were addressed to an e-mail address associated with Kelley – and had child porn attachments. Id. Another investigation in Kansas revealed five e-mails to another Kelley e-mail address, with child porn attachments. Id. at 2290. In a courageous opinion, District Judge Phyllis Hamilton suppressed, explaining that the search affidavit didn’t explain how the Kelley e-mails ended up on the computers of the two traffickers. Id. at 2291.

Issue(s): “Kelley and the government agree that unwitting receipt of e-mail containing contraband will not support probable cause . . .The dispute centers on whether the [search warrant] affidavit is sufficient even though it lacks direct evidence that Kelley actually solicited the offending attachments.” Id. at 2293.

Held: “Since the district court’s decision in this case, this court has made clear that probable cause to search a computer for evidence of child pornography turns on the totality of the circumstances, including reasonable inferences. United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc). In this case, there is a reasonable inference from facts set out in the affidavit that Kelley was not an accidental recipient of emails with attachments containing illicit child pornography. As we conclude that it was fairly probable that child pornography Kelley willingly received would be found on his computer, we reverse.” Id. at 2289.

Of Note: Judge Thomas’s persuasive dissent explains how the majority abandons Ninth Circuit precedent, and dramatically lowers the showing required for a search warrant. Id. at 2301 (Thomas, J., dissenting). He complains, “We have never held – until today – that mere receipt of unsolicited pornographic material, without more, establishes probable cause to search a residence for child pornography.” Id. at 2301-02 (emphasis added).

He closes by warning of the impact of Kelley: “I can well understand the government’s motivation. Child pornography is a scourge on our nation. But every hour, millions of unsolicited and deceptively disguised emails are sent to innocent computer users. Lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment.” Id. at 2305-06.

How to Use: Judge Rymer (joined by Justice O’Connor, sitting by designation) does leave open the “spam argument” for “different circumstances.” Id. at 2297. Her limitations on her new e-mail search warrant rule – such as they are – are crammed into one paragraph. Id. The defense bar will have to try to distinguish the “totality” of Kelley’s facts (e.g., multiple child porn e-mails to multiple e-mail addresses associated with one user) in the inevitable next case.

For Further Reading: Judge Thomas rattles off a list of authority documenting unwanted e-mails (spam) with child porn. See id. at 2301 & n.3 (Thomas, J., dissenting). He’s right: porn spam is “getting raunchier.” See Wired News article here. For example, hundreds of e-mails containing child porn were sent to unwitting users in Sweden. See article here.

The only bright spot in this grim opinion is Thomas’s explanation of the origin of spam: a Monty Python routine where “a group of Vikings in the restaurant insistently sing a chorus about Spam [the processed meat product], increasing in volume until other conversation is impossible.” Id. at 2301 & n.2. (See photo right). The dialogue for this classic sketch can be found on an Italian web site here. A video of the skit itself is here (with Japanese subtitles!)

Steven Kalar, Senior Litigator N.D. Cal FPD. Website available at www.ndcalfpd.org

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