Sunday, June 16, 2013

Case o' The Week: Living with Leon -- Needham, Leon, and PC for Child Porn Search Warrants

  In the great flick Leon, the hitman hero is a “cleaner” who quickly and
efficiently resolves messes -- and isn’t terribly interested in what the law actually requires.
  Required viewing before grappling with the Supreme’s line of Leon “good faith” jurisprudence. United States v. Needham, 2013 WL 2665889 (9th Cir. June 14, 2013), decision available here.

Players: (Reluctant?) decision by Judge M. Smith, joined by Judges Berzon and Tallman (both concurring, on very different grounds). Hard-fought appeal by CD Cal AFPD Matt Larsen.

Facts: A mother alleged Needham molested her son. Id. at *1. A detective got a warrant to search Needham’s home. Id. at *2. The “Statement of Probable Cause” reported the facts surrounding the alleged molestation, that Needham was a registered sex offender, and that a decade before – when Needham was 16 – he had been arrested for lewd and lascivious with a child, and charged with sex abuse of a child and possession of obscene matter. Id. The detective opined that Needham had an unnatural sexual interest in children, and that “these people” collected child porn. Id. The detective did not explain how she learned the “characteristics” of those with sexual interest in children. Id. 
  A search revealed child porn on Needham’s iPod, he was charged federally, and moved to suppress based on the warrant’s lack of probable cause. Id. at *3. The district court denied the motion, holding the search was in good faith reliance on the warrant, and the Leon exception to the exclusionary rule applied. Id.

Issue(s): “Needham first contends that the warrant affidavit did not contain facts sufficient to find probable cause to search his residence for child pornography. In particular, he argues that [the detective’s] assertions that Needham ‘has an unnatural sexual interest in children’ and that ‘[t]hese people collect sexually explicit material of children’ are inadequate to support probable cause that Needham possessed child pornography in his home. He also contends that the district court erred in applying Leon's good faith exception to the exclusionary rule in this case.” Id.

Held: “Like the officers in Dougherty, the . . . . officers in this case relied on a warrant predicated on the bare inference that those who molest children are likely to possess child pornography. Since the date we decided Dougherty, it is clear in this circuit that such an inference, alone, does not establish probable cause to search a suspected child molester's home for child pornography. But because the standard for granting qualified immunity is the same as the standard of objective reasonableness under Leon, we cannot consistently grant qualified immunity to officers in Dougherty, who relied on the warrant in that case, and find that reliance on a similar type of warrant in this case (which was decided before Dougherty ) was objectively unreasonable. We thus conclude that the search in this case was executed in objectively reasonable reliance on the search warrant.” Id. at *5.

Of Note: Judge M. Smith (grudgingly, it seems) finds that the Leon issue is controlled by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011). Dougherty is a Judge N.R. Smith opinion granting qualified immunity on a very similar warrant (Judge B. Fletcher, interestingly, joined that decision). 
  In Needham, Judge Tallman describes Dougherty as a “flawed decision,” id. at *12 (Tallman, J., concurring), and Judge Berzon complains of the “considerable tension” in Dougherty’s internal reasoning, id. at *11 (Berzon, J., concurring). (Though, to be clear, these concurring judges dislike Dougherty for very different reasons). Needham and Dougherty illustrate the huge price of Leon: “good faith” means bad law wags a long tail, sweeping over bad searches for years.

How to Use: Get past the frustrating Leon holding, and you’ll find another Berzon jewel: a wonderful exegesis on the probable cause required for a search warrant. Needham, 2013 WL 2665889 at *6 (Berzon, J. concurring). Clearly and persuasively written, Judge Berzon’s opinion is step one for a 4th challenge to warrants lacking PC.  
For Further Reading: Prosecution of another terrorism case has stalled, because sequestration has forced a respected Federal Defender to pull out of the defense of the case. See "Federal Defender Wants Out of Terrorism Case Due to Budget Cuts," here
  In the same week, a convicted killer’s execution proceedings stalled when a different Federal Defender couldn’t pay travel and witness fees because of sequestration. See Budget fight delays justice for mother of slain KCK girl Pamela Butlerhere.   The mother of the child-victim – frustrated by the delays – offered to “help the defense out . . . . If they want me to get a fundraiser together to help them get their witnesses in, I’ll do that.” Id.
   Small tastes of the world that awaits, when -23% budget cuts hit all Federal Defenders next fiscal year. See Recorder article here.

Image of Leon and Mathilda from Image of Ms. Cherri West, with her daughter Pamela Butler, from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at



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