Sunday, November 13, 2011

Case o' The Week: Paez, Ikuta and the Chism Chasm - Fourth Amendment and Child Porn

Proposition: Intellectual honesty and vigorous application of Fourth Amendment principles is particularly important in child pornography cases. Because of the great stigma of these charges, illegal arrests and searches of innocent folks can wreak unique havoc on careers and lives.

Proposition Exhibit A: Todd Chism (left). Chism v. Washington State, 2011 WL 5304125 (9th Cir. Nov. 7, 2011) (Amend. & Ord. Denying Rehearing en banc), decision available here.


Players: Thoughtful decision by Judge Paez, joined by Judge B. Fletcher. Dissent by Judge Ikuta.

Facts: [Ed. Note: Legally irrelevant to this decision, but important in equity: these plaintiffs, Todd and Nicole Chism, were actually innocent of any of the child porn offenses discussed below. See article here.]

The Chisms, a married couple, appeal from an adverse summary judgment in a federal civil rights suit. The case started with tips to Washington cops reporting that child porn was uploaded onto two Yahoo! websites. Id. at *1. When cops traced the user information for the sites they found the first site was billed to “Mr. Nicole Chism,” with the registration address and billing information matched that of the Chisms. Id. The second site was billed to Mr. Nicole Chism, with no physical location but a credit card that traced back to the Chisms.

When the cops traced the IP addresses used to create the websites, they lead to other people not associated with the Chisms. Id. at *3. [It later turned out that the Chisms’ identities and credit cards had likely been hacked]. Id. at *9 fn. 13.

The cops got a search warrant, and in the affidavit (falsely) represented that Todd Chism had downloaded images: he hadn’t. Id. at *5. The affidavit also (falsely) represented that the Chisms’ credit card had been used to purchase child porn from the websites: it hadn’t. Id.

The affidavit omitted the fact that the IP addresses used to open the Yahoo! accounts were traced to people and residences other than the Chisms. Id. The searches (including a search of Todd Chism’s workplace) revealed nothing and the Chisms were never charged. Id. at *4.

Issue(s): “The Chisms argue that the officers violated their Fourth Amendment rights through judicial deception.” Id. at *5.

Held: “We are mindful that a letter-perfect affidavit is not essential. In this case, however, we do not believe that a reasonable magistrate judge would have issued the search warrant if she had been apprised of an accurate version of the evidence. We therefore hold that the affidavit’s false statements and omissions were material to the probable cause determination for the search warrants.” Id. at *9 (quotations and citation omitted). “[W]e reverse the district court's grant of summary judgment to the officers.” Id. at *11.

Of Note: Judge Ikuta’s pointed dissent helpfully points us to the valuable lessons of Judge Paez’s great decision. Id. at *11 (Ikuta, J., dissenting). As her dissent highlights, Chism is an important decision for Fourth Amendment in the context of child porn because it works through and distinguishes Gourde (that most-regrettable 2006 en banc decision). Id. at *8. See blog discussion of Gourde here. Fourth challenges in child porn cases will now be battles between Gourde and Chism – with Chism the defense touchstone.

How to Use: There are many important Chism principles for future Fourth fights. One of the most important is this: it is a material omission undermining a search warrant application if cops do not disclose that an IP address associated with child porn images is not associated with the physical address to be searched. Id. at *9. Put differently, if an IP address is associated with a physical address different than the physical address to be searched, that fact undermines probable cause and must be disclosed. Id. at *8.

Judge Ikuta bemoans this new “reverse proposition”: that a “
lack of a match between an IP address associated with such images and the IP address of the defendant’s computer reduces probable cause of the defendant’s involvement.” Id. at *15 (Ikuta, J., dissenting) (emphases in original).

Happily, Judge Ikuta is in the minority and the case has now survived an en banc call: thanks to Chism, we now have another arrow in our Fourth Amendment quiver.

For Further Reading: Todd Chism, a Spokane Firefighter, also had his work computer searched because of this unlawful warrant and was arrested while the searchesLink took place. For a video of Todd Chism discussing the case, see link here .

For a thoughtful discussion of the Chism decision, laying out the affidavit's misrepresentations and omissions in more detail, see blog entry here.

Image of Todd Chism from Image of the Honorable Judge Sandra Ikuta from

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


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