Friday, August 19, 2011

Case o' The Week: The Past Isn't Prologue - Dougherty and Probable Cause for Child Porn Searches

You could predict exactly how Judge N.R. Smith would vote on an issue of first impression -- involving probable cause to search for child porn -- based solely upon the knowledge that his background is in civil law, and knowing that he was a prominent Republican appointed to the Ninth by President W. Bush.

You would, however, be wrong. Dougherty v. City of Covina, 2011 WL 3583404 (9th Cir. Aug. 16, 2011), decision available here.

Players: Well-written decision by Judge N.R. Smith (above right), joined by Judge B. Fletcher. Dissent by District Judge Brewster.

Facts: Teacher Doughery was accused of inappropriately touching several students. Id. at *1. This prompted a cop to seek a search warrant; in the application, the cop described his own experience working on sex crimes. Id. The cop then opined, “based upon my training and experience . . . I know subjects involved in this type of criminal behavior have in their possession child pornography.” Id.

The search warrant issued, Dougherty’s computer was searched, nothing was found, and Dougherty filed a § 1983 claim. Id. at *2. The district court dismissed his complaint, finding the warrant supported by probable cause. Id.

Issue(s): “[W]hether evidence of child molestation, alone, creates probably cause for a search warrant for child pornography.” Id. at *4.

Held: “Under the totality of the circumstances, a search warrant issued to search a suspect’s home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics used by the suspect; and (3) the only evidence linking the suspect’s attempted child molestation to possess of child pornography is the experience of the requesting police officer, with no further explanation.” Id. at *1.

“If probable cause did not exist in [the Ninth Circuit's decisions in]
Weber, it cannot exist here. In Weber, the affidavit included at least some direct evidence of the defendant’s possible possession of child pornography, including a two-year-old delivery of a catalog containing child pornography, an order from a fake catalog with image names suggesting child pornography, and general information regarding collectors, pedophiles, and molesters . . . . Here, by contrast, the affidavit includes only a three-year-old allegation of attempted molestation by one student and current allegations of inappropriate touching of and looking at students.” Id. at *4.

Of Note: In a question of first impression, Judge N.R. Smith guides the Ninth onto the right side of a circuit split. Id. at *4-*5. The Second, Sixth, and now the Ninth Circuits all reject molestation – without more – as PC for a search for child porn on electronic devices. The Eighth stands alone in tolerating this weak PC showing.

Knock wood that the Supreme Court lets this split percolate a bit – we don’t want to sweat the Fifth Vote on this Fourth issue.

How to Use: Be careful; this isn’t a bright line rule. Judge Smith hedges a bit at the end of the case, observing that “while the 'totality of circumstances' could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewicz’s 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.” Id. at *5 (emphasis added).

Mark well this “in some instances” caveat - this will be our next battlefield in the child porn, Fourth Amendment war.

For Further Reading: We’ve a brace of Smiths in the Ninth: Judge N. Randy, and Judge Milan (below left). Both men were civil attorneys with little exposure to federal criminal law before their Ninth gigs (though Judge N.R. Smith had been a state judge with criminal experience).

Both Smiths had deep ties to the Republican party before taking the bench.

Both Smiths were nominated by President W. Bush. See, e.g., article here.

And, both Smiths have been consistently open-minded to defense arguments on appeal. For example, both Smiths recently parted ways from Judge Bybee’s majority and joined Judge Berzon’s (effective) “dissent” in the recent Aguila Montes de Oca en banc case.

(Indeed, it was Judge Milan Smith who, in an earlier burglary case, planted the seed of doubt for California burglary that later grew into Judge Berzon’s opinion). See also, Rodriguez; see generally M. Smith blog entries here.

Those Aguila votes, and Judge N.R. Smith’s admirable Dougherty decision discussed in this post, illustrate the truth of our oft-repeated adage: 'tis always foolish to judge a judge by his or her cover.

Image of the Honorable N.R. Smith from
Image of the Honorable Judge Milan Smith from:

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Sunday, August 28, 2011 11:46:00 PM  

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