Thursday, October 08, 2009

Child porn and probable cause

The Sixth Circuit today issued an opinion in United States v. Frechette that has already caused Douglas Berman over at Sentencing Law and Policy to ask "Is concern about child porn distorting normal criminal procedure rules?"

The facts are essentially that the defendant, a registered sex offender, paid for a one month subscription to a website that advertised the availability of child porn. After one month, the defendant did not renew the subscription. Sixteen months later, an ICE agent presented a magistrate with an affidavit that stated the above facts, described the depictions on the home page, and asserting that the defendant had paid for a one month subscription with a Pay Pal account registered to a bank account whose mailing address was the address of the home to be searched, as well as the address for the IP address used to access the website. The affidavit also made boiler-plate assertions about his experience and the storage of child pornography. No allegation in the affidavit stated that there was any evidence that someone from that IP address had ever actually entered the site, nor was there any allegations that someone at that address had downloaded child pornography. The warrant was executed and child pornography was found on the defendant's computer.

The defendant challenged the sufficiency of the affidavit supporting the search warrant, and the district court suppressed the evidence, finding the allegations in the affidavit to be stale because of the 16 month lapse between the supscription and the affidavit and that it lacked a "link between the factual basis and the conclusion that there was a fair probability that evidence of a crime would be found at the defendant's home or on the computer."

The government appealed, and the Sixth Circuit, over Judge Moore's vigorous dissent, reversed and remanded. The opinion (incidentally authored by a district court judge, not a Sixth Circuit judge, meaning we have one Sixth Circuit judge voting for reversal and one dissenting) found that given the nature of the crime alleged, the 16 months between the time of the subscription and the affidavit did not make the information stale. The Sixth Circuit found that the character of possession of child pornography argued against a finding of staleness because possessors of child pornography often kept stashes of child pornography for long term. Incidentally, there is no allegation of this fact in the affidavit as described by the Sixth Circuit. Further, other than the recitation of other judicially created statements to this affect, there is no citation to a source that empirically proves this assertion to be accurate.

The Sixth Circuit also found that the nature of the criminal argued against staleness because he had lived at the address for the entire 16 months. Also, it found that the thing to be seized "had an infinite lifespan," and that the defendant's house "was a secure operating base." These findings led the Sixth Circuit to find the information to not be stale.

As to whether the allegations in the affidavit were sufficient to create probable cause, the Sixth Circuit simply found that the agent's simple assertion that "consumers of child pornography usually maintain illegal images using their computers," was sufficient. I think the Sixth Circuit misapprehended the defendant's argument on this point. Without it being abundantly clear from the opinion, I would believe that the defendant's assertion must have been that the affidavit failed to establish that he had downloaded child pornography from that site, and that without such a link between the place to be searched and the probability of contraband being present the allegations were nothing more than an impermissible "hunch". Rather the Sixth Circuit finds that "the fact that the defendant had viewed the splash page that contained pornographic images of children, set up an account with Pay Pal on the same day, and transferred the exact amount of funds needed from his debit card to the Pay Pal account to pay for the subscription makes it all the more likely he would access what he paid to view. To hold otherwise would defy logic."

Judge Moore dissents, arguing that the majority opinion was based upon an affidavit that "established a single fact partricular to Frechette: Frechette bought a one-month membership to one website displaying child pornography." Moore argues that she "cannot think of any other circumstance where we have endorsed an invasion of a person's privacy with so few facts from which to draw an inference that the intrusion would likely uncover evidence of a crime." She then asks if the crime alleged had been pirating copywrited music, could the Sixth Circuit affirm a search under such circumstances? She concludes that it is the nature of the crime that was driving the majority's opinion, because its "conclusion is erringly shaped by the fact that child pornography cases are particularly appalling. As reprehensible as our society finds those who peddle, purchase, and view child pornography, we, as judges, must not let our personal feelings of scorn and disgust overwhelm our duty to ensure the protection of individual constitutional rights."

Wednesday, October 07, 2009

Resources Available at

This post breaks no new ground, but I just wanted to remind everyone, especially the panel attorneys out there, to turn to the Sentencing Resource page at for a variety of excellent materials. I turn to the papers there on a regular basis and dug in once again this past weekend. If you have a guideline issue, you will most likely find fantastic help on that page.

Friday, October 02, 2009

S. Ct. Updates

This is going to be brief b/c it's been quite a week here, but interesting things have been brewing.

Supreme Court:

* 924(c)---United States v. O-Brien, No. 08--1569.
Question Presented:
Sec. 924(c)(1) provides for escalating mandatory minimum sentences depending on the manner in which the basic offense is carried out. Is the sentence enhancement (for a 30-year minimum), applicable when the firearm is a machine-gun, an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or is it a sentencing factor that may be found by a judge by the preponderance of the evidence?

* SORNA---Carr v. United States, No. 08--1301.
Questions Presented:
1) May a person be prosecuted under § 2250(a) for failure to register when the defendant's underlying offense and the travel in interstate commerce both predated SORNA's enactment?
2) Does the Ex Post Facto Clause preclude prosecution under § 2250(a) if a person's underlying offense and travel in interstate commerce both predated SORNA's enactment?

Lots to think about! Have a great weekend.

P.S. Preserve, preserve, preserve. If you've got mandatory minimums (and they don't have to be 924(c)s) or SORNA cases, think about preservation of these issues!