Today the Sixth Circuit handed down a case on probable cause to search a home based in large part on a subscription to a child pornography website: United States v. Frechette. I blogged in detail about this issue a few years ago, so I wanted to cover the latest case, as well.
The defendant, Douglas Frechette, had a previous criminal history and was listed in the Michigan State Sex Offender Registry as living at a particular address in Muskegon, Michigan. Bank and drivers license records confirmed that he lived at that address. One day, Frechette created a PayPal account in his own name, linked to his own bank account, and from an IP addressed assigned to his home purchased a one-month subscription for $80 to a child pornography website, HTTP:\\[redacted]-lolita.com.” The purchase of the one-month subscription was the only purchase Frechette ever made on his PayPal account. The opinion indicates that the homepage of the website was extremely clear that it was entirely about very disturbing images of child pornography. Visitors to the site were “welcomed” with very graphic and patently illegal images.
It is unclear how long the site stayed on line. A little more than a year after Frechette’s purchase, however, agents learned of the purchase and confirmed from the sex offender registry that Frechette still lived at the same address in Muskegon. The agents applied for a warrant to search Frechette’s home based on that information. A search of of the home led to the discovery of child pornography images and a confession by Frechette. That then led to charges against Frechette, and a motion to suppress the images and the confession as a fruit of an allegedly unlawful search.
The question in the case was whether the magistrate judge had a “substantial basis” to believe that there was probable cause to find evidence of child pornography at Frechette’s home. The court concluded that there was, and this seems clearly correct to me. The agents knew that a registered sex offender had paid $80 to purchase a month of access to a website that offered only child pornography; they knew he had purchased the access from his computer at home; and they knew he still lived at that same home a year later. Given the known practices of child pornography collectors to keep and store images over a long period — practices that the federal courts of appeals have recognized — I would think it highly likely that there would be images of child pornography in the home a year later.
Judge Karen Nelson Moore vigorously dissented. Her opinion accused the majority of adopting a “radical view of probable cause” that created “an unprecedented encroachment upon our constitutional protections” based on the majority’s “personal feelings of scorn and disgust” about child pornography. Judge Moore thought it critical that the website appeared to be for “browsing” images rather than for “downloading” images. According to Judge Moore, “this browsing, without question, can be done without purposefully downloading images.” She also thought it important that Frechette only bought a one-month subscription rather than a multi-month subscription, as had been the case in some cases form other circuits that had found probable cause. She concluded with the following hypothetical:
Consider a factually identical scenario in a different context: Would this court approve a search warrant for all the computers in a home based on an affidavit that contains only one particularized fact—that someone who lived at that address obtained a one-month membership to a website that allows its members to listen to music in violation of copyright law? If the answer to this question is “yes,” there are not enough officers in the nation to enforce the countless warrants that magistrates may now issue to search college dorm rooms and homes across America. If the answer is “no,” as it should be, and as I suspect it would be, one must ask why two cases with materially indistinguishable facts result in two very different outcomes. The answer is as obvious as it is unsettling. The majority’s 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.
I think Judge Moore is wrong for a few different reasons.
First, there is no legal distinction between “browsing” and “downloading.” The federal child pornography laws criminalize intentional receipt and knowing possession, and anyone who goes out looking for images and sees them has intentionally received the images. Judge Moore notes the uncertainly over whether intentional browsing amounts to possession, but she mistakenly assumes that this is a dispute as to whether browsing is legal. See footnote 2. Intentional browsing is pretty clearly illegal under the receipt ban, though, regardless of the interesting issues raised by whether browsing amounts to the separate crime of illegal possession.
Second, I’m not sure I see the relevance of the fact that Frechette purchased only one month of access. My sense is that sites explicitly dedicated to child pornography usually last a matter of hours, days, or weeks, not months, before being taken down. It would have been surprising to purchase a subscription to such a site for several months, especially at $80 a month. And it’s not like this purchase was an accident: Frechette was a registered sex offender who set up a PayPal account just to make this one purchase. It seems very unlikely to me that he would go through the trouble of setting up a PayPal account for this and then pay $80 and then never actually receive or possess any images.
Indeed, the case for probable cause strikes me as dramatically stronger in this case than in most of the past cases from other circuits. In most of the past cases, the police knew an e-mail address had been used to join a child pornography e-mail list. They weren’t sure where the person was located in a particular place, or even whether the real account holder had been the one to join, whether the person every logged into the account to receive the images, and they didn’t know anything about the suspect (such as a prior criminal record involving sex offenses). In this case, though, they knew a registered sex offender had spent a good amount of money to buy access from his home to a site dedicated to child pornography. Further, the opinion states that the welcome pages of the site — the pages a person would see before buying a subscription — themselves contained very explicit images of child pornography, which Frechette must have seen before he intentionally purchased a subscription. I think that is very strong evidence.
Finally, Judge Moore’s hypothetical about a warrant for copyright offenders just doesn’t work. Most obviously, possession of unauthorized copyrighted material is not a crime. To be guilty of a copyright crime, a person needs to actually know they are breaking the law, the downloading cannot be fair use, and the person needs to download enough music to trigger the statutory threshold ($1,000, if I recall correctly). Mere purchase of a subscription to a music site does not show or significantly hint at any of these elements, so the fact of a subscription alone could not plausibly provide probable cause of any crime. In contrast, receipt or distribution of a single image of child pornography is a crime whether the suspect knows it or not, and there is no “fair use” defense. Plus, the argument that “there wouldn’t be enough police officers in the nation” to enforce an equivalent copyright crime seems off to me: Enforcement of the law is up to the executive, not the judiciary, and the executive has chosen not to enforce criminal copyright laws except in very extreme cases in large part because enforcement would be so invasive. The limit on copyright enforcement is a judgment about resources and social benefit, not a question of Fourth Amendment law.
ChrisTS says:
Thought: just linguistically – not considering the definition of elements of the offense – it seems clear that to view an image is to receive it.
Question: The purportedly analogous case the Judge offers includes a warrant to search multiple (“all the“) computers in a home. Is this an important factor? Did the defendant have multiple computers that were all searched? Were there, even, other residents in his home?
October 8, 2009, 12:53 pmDave says:
Orin,
I would like to push back on your first criticism of Judge Moore. You stated the question as: “whether the magistrate judge had a ‘substantial basis’ to believe that there was probable cause to find evidence of child pornography at Frechette’s home.” I think that the browsing/downloading distinction speaks precisely to this question. If the website were entirely small thumbnail images and the individual had to download them to view them fully, it would be more likely that, one year later, that they would be on his hard drive or printed out somewhere in his home.
Even if we assume that intentional browsing is just as illegal as downloading, if the website solely involved the latter I think it would be more likely that we could establish probable cause w/r/t finding evidence of child pornography at his home – images on the hard drive, print outs, etc.
If Judge Moore’s second footnote is at all correct about this being an open question, then this distinction becomes even more significant.
So I guess I agree with her … but as you’ve forgotten more about this stuff than I’ve ever learned, I’m sure you can persuade me if you care to.
October 8, 2009, 12:58 pmgravytop says:
I agree with your analysis. However, the basing of probable cause on the claim that CP collectors tend to keep images for long periods of time rather than view and delete them has always struck me as based on questionable reasoning. It seems like the persons who get caught are more likely to have collections that they have kept for long periods of time. Are there a significant number of persons who view CP, but don’t retain it, and are not charged because their use of it is more circumspect? I hope not. It just seems to me that the “CP collectors keep their images” claim is true because of the nature of investigation itself.
October 8, 2009, 1:03 pmAllan says:
One of the points the majority makes is that child pornography is not like drugs, in that one tends to keep child pornography longer than drugs. That is, the information takes longer to go stale.
On the other hand, computers die or are discarded. At what point does the information become stale? I would think that it would be when one is expected to replace one’s computer.
October 8, 2009, 1:08 pm4thAm says:
Orin:
Much of what you say makes sense. My only problem your belief that “there is no legal distinction between ‘browsing’ and ‘downloading.’”
True enough, viewing is just as illegal as downloading. But if a suspect was only browsing the photographs sixteen months ago, does that alone create probable cause that he currently possesses evidence of criminal activity today? I’m not so sure.
Perhaps there is evidence of the browsing on the suspect’s chache or temporary internet files or something else inside his computer. (Though this evidence would be redundant, since the agents already have evidence that the defendant’s computer visited the website.)
But you rest your probable cause analysis largely on the idea that viewers of child pornography are hoarders. If the defendant didn’t download, then what was there to hoard?
I don’t think it would have taken much more to make this warrant sufficient. Probably an allegation that the site allows for downloading would have done the job. But you are wrong about there being no distinction of legal importance between whether the site allowed downloading.
Viewing may be illegal, and may give rise to probable cause that a crime has been committed. But it does not give rise to probable cause that sixteen months later, evidence will be found at the place to be searched.
October 8, 2009, 1:21 pmTim says:
It seems strange to me that nobody considers how “agents learned” of this information. The opinion glosses over this as if it doesn’t matter.
It also is a shame that the presumption appears that this search was reasonable. I don’t see how it could be. “Agents learned” sounds like some random hunch to me, not legitimate probable cause.
October 8, 2009, 1:22 pmRyan Waxx says:
Agree with the previous posters: Your first point is based on a misunderstanding of the point the judge was trying to make… it’s not that browsing versus downloading is more legal than the other: Its that evidence of browsing (the cache) is highly unlikely if the perp merely was browsing, but if he was downloading, it’s far more likely. Therefore the distinction she makes is perfectly valid re: the question weather the warrant was… warranted.
However, in practice it’s very difficult to design a website so that you can view images without having the ability to save them. Even were it locked in such a manner, you could still copy the entire screen and save that, although that would be a rather time-intensive way to go about things.
October 8, 2009, 1:25 pmpete says:
But it is pretty common to back up files and then transfer them to your new computer. Especially things like photos. I still have documents that I first created 15 years ago that I still have on my 3rd PC and have backed up on 2 external hard drives.
October 8, 2009, 1:27 pmTim says:
I agree. This is another point which shows that this case should have clearly gone the other way.
I’m utterly disgusted by what I read in that opinion. Apparently some judges believe that cops can do whatever they want.
October 8, 2009, 1:28 pmgravytop says:
@4thAm
“But you rest your probable cause analysis largely on the idea that viewers of child pornography are hoarders. If the defendant didn’t download, then what was there to hoard?”
I think the assumption is that CP users don’t simply view pictures once, and move on. They typically download and keep them, in the experience of law enforcement. (Any picture can be downloaded, whether a site offers that as an explicit option or not.)
Again, it seems to me that if it is indeed the experience of LE that CP users keep and store photos, couldn’t that largely be because those are the people who are likely to get caught?
October 8, 2009, 1:29 pmMCR says:
I assumed that the information was uncovered when the site was shut down; Frechette’s name would presumably have appeared on some sort of subscriber list.
October 8, 2009, 1:29 pmOrin Kerr says:
I’m not sure I follow this. The opinion does not suggest that there were any small thumbnail images. My assumption is that Judge Moore thinks “browsing” refers to “looking,” whereas “dowloading” is the act of intentionally bringing the file on to one’s machine for purposes of storage. The cases on possession say that this could make a difference for the question of possession, as you could not know you have possession (and this not be in possession) if you do not know that the browsed images are on your computer. But receipt is different from possession: Looking for and finding an image on the web intentionally brings the image to your computer, even if you do not then knowingly control it — and therefore “possess” it for purposes of the law — after it arrives. See, e.g.,State v.
October 8, 2009, 1:32 pmJensen, 173 P.3d 1046 (Ariz. App. 2008).
Orin Kerr says:
Tim,
I do not see how the case could have come out the other way, so I guess I am not sure why you think some judges believes the cops could do anything. Of course, if you’re just venting, that’s okay, too.
October 8, 2009, 1:36 pmOrin Kerr says:
Ryan Waxx:
1) There was no evidence that Frechette was merely “browsing.” As I understand it, Judge Moore’s view that the website was for “browsing “and not “downloading” is not based on any evidence.
2) it seems more likely, not less,that a person who pays $80 for a one month access to a website will download the images and store them permanently than would a person who pays for an ongoing service or joins a free e-mail list.
3) Note that the actual images weren’t required for probable cause to exist: the question is whether any evidence at all of the criminal acts of downloading were there, including just records of the paypal account.
October 8, 2009, 1:43 pmPlastic says:
I disagree. While mere possession of a copyrighted work is not a crime, the warrant could instead be used to find software used for illegally downloading copyrighted material and logs associated with any such downloads. Copyright infringement of a single work can result in statutory damages of $30,000 ($150,000 for willful infringement), easily above the statutory minimum. That some downloads may be fair use doesn’t really matter, just like having some legal porn in his collection of child porn wouldn’t matter. I believe that innocent infringement only triggers a lesser penalty, but I’d have to confirm that.
October 8, 2009, 1:46 pmShelbyC says:
It is, of course, impossible to browse without downloading. The only distinction if how persistant the local storage medium is.
October 8, 2009, 1:54 pmAnderson says:
However, in practice it’s very difficult to design a website so that you can view images without having the ability to save them.
wwtdd.com seems to’ve managed, and it doesn’t seem like the most advanced site in the world.
Judge Moore’s opinion sounds rather weird.
October 8, 2009, 1:56 pmptt says:
Didn’t you just make a rather convincing argument that buying a one-month subscription was quite likely a financially prudent act, given the short-lived nature of the websites in question?
October 8, 2009, 1:58 pmRyan Waxx says:
Weather or not there is evidence that the site made it difficult to download as opposed to merely view is a completely different question as to weather it should matter if there was. The central question is weather there was a likelihood that the pictures were still there, and how hard it is to save the images speaks directly to that concern.
Again, saying that both downloading and viewing the site are equally against the law has no bearing on weather the evidence is likely to be still there to be found, a year later.
Agreed.
Let me get this straight… you are claiming that finding records of a paypal account that was accessed once a year ago and never again used… is a reasonable expectation? Really?
Nonetheless, your original point that MORE evidence exists here than in other CP investigations is well taken, although the sheer paucity of the evidence you cite in those investigations leads one to question weather those investigations are actually being performed in accordance with the law.
October 8, 2009, 2:10 pmFlotsam says:
I know nothing about child porn law and hope it stays that way.
But, Is the fact that he paid for the subscription the key to violation of the criminal statute?
IOA, if he found a magazine on the sidewalk which obviously contained child pornography, picked it up and looked at it, then tossed it in the nearest trash bin, has he violated the statute?
October 8, 2009, 2:14 pmdrunkdriver says:
Judge Moore thought it critical that the website appeared to be for “browsing” images rather than for “downloading” images. According to Judge Moore, “this browsing, without question, can be done without purposefully downloading images.”
Someone should introduce Judge Moore to the “PrntScn” key.
October 8, 2009, 2:15 pmRyan Waxx says:
And yet, the short-lived nature of the websites in question is ALSO evidence that he probably saved the images. So there’s a good argument there to be had: It’s just a pity that the majority did not feel they had to make it.
October 8, 2009, 2:22 pmOrin Kerr says:
Plastic writes:
That is incorrect. The Fourth Amendment requires probable cause of a crime, not of a civil offense. Civil copyright law is irrelevant. Plus, fair use copying is not infringement at all.
October 8, 2009, 2:26 pmOrin Kerr says:
Ryan Waxx writes:
I don’t know what you are asking. Try again?
October 8, 2009, 2:27 pmJay says:
“It also is a shame that the presumption appears that this search was reasonable. I don’t see how it could be. “Agents learned” sounds like some random hunch to me, not legitimate probable cause.”
They had a “random hunch” that a specific sex offender bought a subscription to a specific child porn site in a specific way, and it all just happened to be correct? That’s a pretty amazing hunch. My guess is the “agents learned” about him when the site got busted and all its subscription records came to light.
October 8, 2009, 2:30 pmPatHMV says:
Ok, everybody who has replaced their computer in the past 18 months and NOT copied any of the information (e-mails, etc.) from it to a new computer, please raise your hands. If less than 50% of the hands are raised, then it is more probable than not (51%) that any individual person will continue to either possess the same computer 18 months from now as they have today or will transfer some quantity of data from the old computer to the new computer. Thus, evidence that you possessed child pornography on your computer 18 months ago provides probable cause to believe that you continue to either possess some child pornography or that you have evidence of your past possession of child pornography on your computer today.
October 8, 2009, 2:36 pmPeteP says:
“I think Judge Moore is wrong for a few different reasons.
Judge Moore exemplifies a core problem in our society, especially the denizens of the legal corners of it.
She equates downloading a few pop tunes to posessing child pornography by a convicted felon and known registered sex offender, and she can not see a distinction between the two.
She lives in a fanatasy land called ‘the law’, where common boundries of reality do not apply, and any conclustion, no mater how wrong, can be justified by saying ‘it’s the law’.
October 8, 2009, 2:38 pmPatHMV says:
Some folks seem to have an absurdly ridiculous believe in the level of evidence which should be required before issuing a search warrant. It doesn’t require proof-positive of a crime, it doesn’t require proof beyond a reasonable doubt…. and it never has. The police don’t have to have the equivalent of eye-witness testimony that the man was seen viewing child pornography yesterday in order to obtain a warrant. In fact, I would find it reasonable for there always be probable cause to believe that, if you purchased an item, it remains in your possession, unless there are specific facts known to the police to contradict that.
Let’s look at a non-computer crime. Police find a gun, the murder weapon, at the scene of the crime. They run the records and determine that you purchased the gun 5 years ago. There’s no fingerprints on the gun and no other records or information available to the police about that gun in the intervening 5 years, no reports it was stolen, no other crimes linked to it, nothing. Just that 5 years ago, you bought it. Are some of you folks seriously suggesting that your 5-year old purchase of the gun doesn’t give police probable cause to search your house for further evidence of the murder, such as to examine any other ammunition in your house to see if it matches the bullets at the crime scene?
October 8, 2009, 2:43 pmzippypinhead says:
As I read the comments, the main criticism of the majority is on the question of whether the probable cause is stale – whether the evidence, while probably once on the premises to be searched – is likely to still be there at the time of warrant issuance.
As any Magistrate will tell you, that’s a factual question that has to be addressed in any search warrant application. The answer differs greatly depending on the facts at hand. For example, the probable cause underlying a warrant application seeking contraband such as drugs is almost certainly going to be deemed stale after 16 months, because the specific drugs at issue are likely to have either been consumed or sold in the interim. On the other hand, an application seeking evidence in the form of corporate business records is likely to have no staleness problem even if the records sought are years old, because standard business filing systems retain records for long periods of time, especially records relating to finance, securities, personnel, tax, environmental, or other topics with a nexus to regulatory requirements.
With CP in particular, both the psychological literature and law enforcement experience strongly support the proposition that a large percentage of offenders “collect” contraband images, retaining them essentially indefinitely, putting them on permanent storage media, transferring them to new computers, etc. This is especially so when they have paid to acquire their “collectables.” If the agent properly averred this point in his probable cause affidavit, it was correct for the Magistrate to find that the evidence of CP on the premises to be searched was not stale.
October 8, 2009, 2:44 pmDavid Nieporent says:
I think Moore’s dissent has some merit… given her view in footnote 2 that merely viewing such images isn’t a crime. But once you realize that she’s mistaken on this point — she confuses the issue of receipt and possession — then her dissent fails.
October 8, 2009, 2:52 pmDavid Nieporent says:
No, she didn’t.
I’m quite sure she can. But what does that have to do with the issue here, which is probable cause?
October 8, 2009, 3:28 pmMark says:
Orin,
You appear extremely certain that a mere browsing of child pornography satisfies the “receipt” prong of the “receipt and possession” test. However, in fn. 2, Moore cites several cases that suggest it’s an unresolved question. Can you please elaborate on this point? Is Moore misinterpreting the cases that she cites or do you just disagree with courts that believe the issue is not resolved.
October 8, 2009, 3:37 pmDavid Nieporent says:
I didn’t look at all the cases she cited, but the ones I did, she was misinterpreting. As I said above, she seems to have ignored the receiving/possessing distinction, which those cases make.
October 8, 2009, 3:45 pmOrin Kerr says:
Mark asks:
She is misinterpreting the cases. She is looking at cases on possession, in which only possession was charged, and the courts had to struggle with someone who browsed was in possession if they didn’t know of the copy they possessed. That’s separate from receipt.
October 8, 2009, 4:16 pmDavid Schwartz says:
If you look at an image of child pornography, say in a store window, is that “receipt”? Don’t you think that if Congress meant to criminalize mere viewing, they would have said so explicitly?
Say there’s a store that declares “Child Pornography Display”. I walk in specifically to see that display and look at many images that would be unlawful for me to receive, sell or possess. Have I broken the law by intentionally “receiving” them merely by viewing them?
Do I “receive” every image that I aim my eyes at, retaining a “copy” in my brain as well perhaps? And why should it matter if the technology is different if the intent and effect is the same?
October 8, 2009, 4:34 pmLeo Marvin says:
Slippery slope question: How much difference does it make that Frechette was a registered sex offender? Wouldn’t his having subscribed to the site, by itself, get you to almost the same place? The only difference I see is that someone might subscribe out of “curiosity” who wouldn’t necessarily have as strong a tendency to collect and keep the images as a true fetishist would. But as someone who’s never spent a penny to join a website of any kind, I find it hard to imagine doing so without downloading some of whatever the site is offering. And once you’ve got it, isn’t it harder to get rid of it than keep it?
If these assumptions are correct, how do you think the court would have felt about issuing the warrant absent the sex offender status?
October 8, 2009, 4:54 pmTim says:
Then perhaps we’re reading a case. “Agents learned” does not convince me that they lawfully obtained evidence that this man was in possession of anything illegal.
The police do not have the authority to search my Paypal purchases or “learn” of what I’m viewing on the internet without my permission or probable cause, as you already know. The Judges in this case completely glossed over the critical point–how the evidence that alerted to him had been obtained in the first place.
I suspect that ICE did something illegal, which red flagged this guy in the first place. Then, using unlawfully obtained evidence, they obtained and executed a search warrant, which resulted in this man being charged with several crimes.
These judges completely overlook the critical question. Without any lawful establishment of probable cause, they’re nothing but jack booted thugs.
October 8, 2009, 4:58 pmDavid M. Nieporent says:
I suppose. But nobody is talking about “mere” viewing.
The law should only be technology-neutral if the situation is the same either way. Here it isn’t. You’re using the wrong analogy. Let’s suppose you see an ad in the back of a magazine that says, “Send $80 to P.O.Box Such-and-Such, and we’ll send you some CP magazines.” If you do, have you received it? Sure; that’s what Congress was trying to ban. Why should you escape conviction because they sent you electronic images rather than print images?
October 8, 2009, 5:04 pmOrin Kerr says:
Tim Nuccio writes:
You forgot to say that the FBI planted the evidence on Frechette’s computer. If you’re going to invent claims of government misconduct, I think that’s a good one to invent.
October 8, 2009, 5:11 pmDavid Schwartz says:
DMN: That obliterates the very distinction that was supposedly key here. We are supposed to be talking about cases where you have “received” child pornography with no intent to “possess” it. In the case where you send money to receive a magazine, you have clearly demonstrated an intent to possess the child pornography, not merely to receive it. (I would argue this is more akin to saving a copy of an image, where you act to gain control over the image.)
A technology-neutral case might be where you go to a store known (to you) to have books containing child pornography and you thumb through them specifically looking for child pornography (and find it). That would be receipt without possession.
If Congress meant to criminalize knowingly viewing child pornography, they certainly could have. But they didn’t.
October 8, 2009, 5:11 pmSuperSkeptic says:
The question in the case was whether the magistrate judge had a “substantial basis” to believe that there was probable cause to find evidence of child pornography at Frechette’s home.
That being the case, I’m with Zippypinhead that the issue then is staleness. I don’t think it was stale in this context, so there was a substantial basis to believe that there was probable cause. (This is where Judge Moore’s copyright hypothetical comes into play: she’s simply saying (or trying to say) that if you believe this guy has this stuff, then you should believe all the college kids likely have their Napster/Kazaa/whatever files – and neither would be stale). I agree with her to the extent that I would also believe that those college kids likely have those files as well, such that those P.C.-warrant requests would not be stale. Although, as it has been noted, it is an executive discretionary decision whether to pursue the matter of Freshman X’s downloaded copy of Lil’ Wayne’s “stuntin like my daddy.” I’m simply pleased that a warrant was requested and the government didn’t search the house without one, claiming exigent circumstances or something because the longer they wait after learning this was done over a year ago, the greater the chances of destruction of evidence…
I wonder, more generally, whether this type of reasoning with regards to staleness creates a dangerous presumption that anything regarding computers (increasingly much, much more of our lives) is insulated from staleness issues because of the nature of permanent computer storage of information.
October 8, 2009, 5:14 pmDavid M. Nieporent says:
Perhaps you’re confusing the opinion with a warrant application. The court is not trying to “convince” you of something which is irrelevant to the issue the court is addressing.
Perhaps you’re unaware of how our legal system works: courts address issues raised by the parties. The defendant did not argue that the evidence should be suppressed because the police had developed their probable cause through unlawful means. So it wasn’t even a relevant point, let alone a “critical” one.
You understand that your unfounded suspicions have no relevance, right?
October 8, 2009, 5:21 pmPatHMV says:
David, how is that distinction key here? Had he merely gone to the front page of the site, and no further once discovering it was a child porn site, then the distinction might be relevant. But here, he saw the site, created a Paypal account, and sent $80 to the site. By going to that site, knowing (from the front page) that it contained child pornography, he asked that digital bits encoding the contraband images be transferred to his computer. Whether that was for one-time viewing only or to store more permanently in some longer-term archive on his computer seems immaterial to me. I don’t see the relevance of the distinction you are making in the context of this set of facts.
I understand the general distinction. I once worked as a lawyer for an exceedingly bureaucratic state agency, and I remember when one of our employees flipped out because he accidentally typed in “WhiteHouse.com” instead of “WhiteHouse.gov.” He was sure he was going to be fired for surfing for porn on state time. That was an inadvertent viewing, and there was nothing to indicate that the employee was trying to find porn (would make for a great excuse though, wouldn’t it?). But that’s just not the fact pattern that we have here.
October 8, 2009, 5:21 pmPatHMV says:
(That last was addressed to David Schwartz, of course, not David M. Nieporent.
October 8, 2009, 5:23 pmPlastic says:
You’re right, I was mixing criminal and civil penalties. In fact, for criminal liability you do need willful infringement and one of the following: (1) for commercial advantage or private financial gain, (2) more than $1,000 of total retail value within 180 days, or (3) a work being prepared for commercial distribution. I don’t think the idea of downloading about 40 total of CDs, movies, and TV episodes in 6 months is much of a stretch (given ~$25 each).
So it seems reasonable to say there’s no more probable cause from subscribing to a child porn site that he’d have child porn on his computer than there would be from subscribing to a illegal music downloading site that he’d have records of illegal music downloads on his computer. There is one more element to prove, willful infringement, but if we look at his previous record (he was on the sex offender registry), and if we take the factually identical scenario as Moore suggests, then having a previous record of copyright infringement would make it fairly likely to prove.
I’m not saying fair use is infringement, I’m saying it’s irrelevant whether some of the downloads could be fair use when issuing the warrant. Just like the warrant could have turned up legal porn on Frechette’s computer, and if that’s all they found they wouldn’t have charged him.
October 8, 2009, 5:32 pmDavid M. Nieporent says:
No. We’re talking about cases where you have received CP; whether you intended to possess it is irrelevant.
Your argument is nonsensical; what you’re saying is that there’s a difference between viewing and possessing, the defendant didn’t possess it, therefore he must not be guilty because Congress didn’t intend to criminalize viewing. In short, you’re defining “receiving” out of existence.
He didn’t just surf past the website here; he sent the money for the “magazine”; he just received it in digital form. But that’s not a defense.
October 8, 2009, 5:34 pmSara says:
I think you are being too dismissive of Tim’s concern (even if it is overwrought). If the case is as Tim states it, Tim is right that “agent’s learned” is lousy justification for p.c. And the courts (especially an appellate Court, setting precedent) failed in a VERY fundamental duty.
October 8, 2009, 5:42 pmPeteP says:
“Perhaps you’re unaware of how our legal system works: courts address issues raised by the parties. The defendant did not argue that the evidence should be suppressed because the police had developed their probable cause through unlawful means. So it wasn’t even a relevant point, let alone a “critical” one. ”
Thank you for making my point.
Our ‘justice’ sytem ( ha ha ) is based on ‘who has the trickiest most awake lawyer’. By your example, which I’m sure is correct and I do not dispute, the judge could be sitting there thinking ‘Man ! If that defense lawyer had more sense than a 1L, he’d raise an objection on that point, I’d rule in his favor, and his client would walk ! But, I’m just a Judge – so I’ll sit here and watch this poor schnook of a defendent get poor representation, as long as it’s not legally inadequate representation, and go to prison’. And when it comes up on appeal with a better lawyer ( if the schnook can ever afford one ), it’ll be too late, because he didn’t say ‘the magic words’ at the right time.
This is JUSTICE ????? My ass.
October 8, 2009, 5:44 pmPatHMV says:
DMN… I think the distinction they’re trying to make is that the government only had evidence that he sent the money for the magazine, but did not have evidence that he ever actually used the access which he purchased (I assume that the government obtained financial records, but not IP logs, from the child porn site operators). But you’ve still at least got probable cause to look for evidence of the attempted possession of child pornography.
And that’s the key here. There was evidence that, at the very least, the guy attempted to obtain child pornography 18 months ago. That strikes me as plenty to provide probable cause that evidence of that crime may still remain on his computer.
October 8, 2009, 5:45 pmPatHMV says:
Sara and PeteP… you’re missing the point. The point is that opinions do NOT quote every single minor detail of the case. They summarize and address the most relevant points. That the judge in the opinion describes the warrant as “agents learned” tells us nothing about the content of the warrant application. It does not give us any reason to believe that the warrant application merely said “agents learned.” Unless the legal issue before the court relates to that issue, it would be a waste of time and energy for the court to write “agents lawfully executed a search warrant on the owners of [redacted]-lolita.com, seizing its computerized financial records; a review of such records revealed that an e-mail address, johndoe@emailcompany.com, was used to identify one of its subscribers, who bought a 1 month subscription to that site for $80; agents then obtained a subpoena for the records of emailcompany.com, which in response identified the owner of johndoe@emailcompany.com to be the defendant.”
That just doesn’t go in the opinion unless there’s some question about that aspect of the legality of the search. There’s zero basis whatsoever for assuming anything improper about that aspect of the search. It is not the role of the court of appeals to lay out the entire trial transcript or the details of all the evidence.
October 8, 2009, 5:53 pmDavid Nieporent says:
Pat – first, thanks for clarifying that your earlier post was aimed at David S rather than Me. Second, I’m not entirely sure what distinction they’re trying to make; now I think that perhaps David S is arguing that since receipt is different than possession, evidence of possession can’t also be evidence of receipt. Or something. In any case, yes, people are ignoring the fact that the issue is probable cause, not guilt. If he paid $80 for it, that’s probable cause to believe he looked at it.
October 8, 2009, 5:55 pmrick.felt says:
I don’t think I understand Tim’s “agents learned” objection. Is the argument that because an appellate opinion does not recite every step taken by the authorities in obtaining a search warrant, there’s something suspect about those unmentioned steps?
If that is the argument, let me ask Tim this: do you really think that you’re the first person to think of this? Do you really believe that the defendant overlooked the possibility that there was a 4th Amendment violation in how the government learned of the PayPal purchase? Don’t you think it’s more likely that the defendant’s clearly competent counsel conceded, implicitly if not explicitly, that there was no constitutional problem with the way that the government learned of his PayPal transaction?
How many appellate opinions have you read? I’m seriously asking, because if this isn’t your first semester in law school, you should know that only the most promising issues are litigated on appeal, and that an issue that’s glaring to you as some guy killing time on the internet has almost certainly been puzzled through by an attorney who’s getting paid to litigate this case.
October 8, 2009, 6:29 pmDavid Nieporent says:
But the case isn’t as Tim states it. You’re quite right that “agents learned” — without knowing how they learned — is not enough to know whether their actions were legitimate. But the fact that the appellate court didn’t explain how the agents learned does not mean that it’s a secret how the agents learned; it just means it wasn’t germane to the appeal, so the court had no need to elaborate on that point. That’s an issue that could have been explored at the trial court, and presumably was resolved to the defendant’s lawyer’s satisfaction. (As several people above explained, it was almost certainly through busting the website and reviewing its records.)
In the scenario you describe, a judge would likely “suggest” to the lawyer what he might be missing.
But your “point” is rather lacking in perspective. Our system is adversarial, with the judge an impartial arbiter, not a participant. How would you feel if the judge was helping out your adversary, such that you were fighting not just your opponent but the court as well?
October 8, 2009, 6:36 pmDavid Schwartz says:
So would the person who goes to a book store to look at images of child pornography, and who does in fact look at them, be “receiving” child pornography or not?
I’m not trying to define receive out of existence. I’m trying to figure out how it’s distinct from possession. A common definition of “to receive” is “to take possession of”.
Do you think it is a crime to knowingly view child pornography? If so, then you can ignore my argument. But if not, why does the technology he used to knowingly view it matter?
If we’re going to distinguish “receive” from “possess” we’re going to have to do that. But I think the distinction is going to have to make it so that merely viewing (even knowingly) is not a crime.
What if he had paid $80 for admission to a friend’s child pornography collection, which he looked at. He could have taken pictures of the collection while he looked at it, but there’s no reason to suspect specifically that he did. Is that “receiving”?
(I honestly don’t know, by the way. I’m not sure what the contours of “receiving” should be. I’m open to making them greater then “possessing” but not open to making them included mere viewing. And any argument that defines them in such a way that possession always requires receiving, IMO, is just as problemmatic as an argument that defines them to not extend further than possession.)
October 8, 2009, 6:48 pmCleanville Tziabatz says:
With CP in particular, both the psychological literature and law enforcement experience strongly support the proposition that a large percentage of offenders “collect” contraband images, retaining them essentially indefinitely, putting them on permanent storage media, transferring them to new computers, etc. This is especially so when they have paid to acquire their “collectables.” If the agent properly averred this point in his probable cause affidavit, it was correct for the Magistrate to find that the evidence of CP on the premises to be searched was not stale.
If this wasn’t in the warrant papers then the warrant should not have been issued. Maybe Judge Moore point is best understood as a criticism that if this “psychological literature” and “law enforcement experience” was being assumed, and was not required to be shown (much less by scientifically competent evidence) in the warrant application itself was a Fourth Amendment violation which is being countenanced because the mere mention of CP makes everybody go all Rev. Lovejoy’s wife.
Also, even if a large percentage of purchasers of traditional pulp based CP have been shown to keep them, I don’t see any reason why that would necessarily apply to website visitors of CP websites. Maybe it is true, but the investigators should carry the burden, with real evidence, before even warrant one issues on these types of facts.
October 8, 2009, 6:59 pmDavid Nieporent says:
Cleanville, you’re making the mistake Pat and I discussed above: the standard is “probable cause,” not proof. The police do not need to establish guilt in order to obtain a warrant.
October 8, 2009, 7:06 pmCleanville Tziabatz says:
And let’s be clear here: I am no fan of CP collectors. However, I don’t want a SWAT team bursting into my house in the middle of the night and shooting my dogs (for barking) and me (for holding a cel phone) just because some identity thief stole my id and bought a CP subscription with my info. That is EXACTLY what this case is about. Mr. Frechette’s involvement is regrettably incidental.
October 8, 2009, 7:06 pmPatHMV says:
David Schwarz… it’s not like he paid them $80 and they held up the photos to a window, so he could view them through a telescope from the comfort of his attic window. When you view images on a computer, they are necessarily placed ON YOUR COMPUTER.
Note to many commenters… there’s a really major difference between the level of evidence required to obtain a warrant and the proof required to convict somebody. Seriously.
October 8, 2009, 7:09 pmCleanville Tziabatz says:
Cleanville, you’re making the mistake Pat and I discussed above: the standard is “probable cause,” not proof. The police do not need to establish guilt in order to obtain a warrant.
No. I was referring to real solid evidence establishing a PROBABILITY. One of the posters said that such evidence exists, but, sadly, chose not to link to it.
October 8, 2009, 7:10 pmPatHMV says:
Cleanville.. identity theft is not yet common enough that the police must negate it before assuming that the person who used your e-mail address and accessed your bank account was you. Life sucks sometimes. Once again, probable cause does not equal proof beyond a reasonable doubt. There are plenty of places to argue over proper warrant execution techniques (and I’d agree with you in most cases about SWAT teams busting down the door), but that’s got zip to do with this case.
October 8, 2009, 7:12 pmPatHMV says:
It will come as a great relief to criminals of all sorts that so many people believe that purchasing a subscription to a website dedicated to child pornography is not probable cause to believe that the purchaser was intending to possess or receive child pornography. Up next, people who believe that paying a hit man does not provide probable cause that the payer wants the victim to be killed.
October 8, 2009, 7:15 pmCleanville Tziabatz says:
Who says?
Upon what factual basis?
Sometimes life sucks, but it sucks for fewer people if the Fourth Amendment is followed in that probable cause is ESTABLISHED and not PRESUMED.
October 8, 2009, 7:16 pmDavid Schwartz says:
When you view images through a window, they are necessarily placed on your retina. They are both incidental ephemeral copies created in the viewing process.
October 8, 2009, 7:22 pmHawkeye says:
I too wondered about how “agents learned” about the details of the defendant’s Pay Pal, bank, and Comcast accounts. My suspicion is, they just asked Pay Pal, perhaps the bank, and Comcast. I’m not up on the law in that area, but I would assume that if the government asks Pay Pal for my account records, and Pay Pal provides them, there has not been a 4th Amendment violation. Although many people probably harbor an uncritical expectation of privacy in such records, in reality, they are probably not protected by the Fourth Amendment. (First, unless Pay Pal’s privacy policy states that they won’t divulge such info to the feds, such an expectation is not reasonable. Second, even if Pay Pal told me they wouldn’t divulge such information, it is not clear that Pay Pal’s breach of that agreement would be attributed to the government, at least if the government agents just asked nicely for the records, as opposed to compelling production. Sort of like a co-tenant consent case.)
That said, I do think there is reason for concern that so much evidence of our personal activities is in the hands of third parties who may hand them over to the government at any time. This is one of the reasons I was very disappointed at the telecom amnesty bill — tort liability might be one way to motivate such companies to take their customers’ privacy more seriously. But I don’t see it as a Fourth Amendment issue in this case — and apparently neither did defense counsel.
October 8, 2009, 7:22 pmShelbyC says:
I’m not sure I understand. Doesn’t it matter because the technology at issue here involves receiving the image before viewing?
October 8, 2009, 7:32 pmDavid Nieporent says:
A police officer saying, “I’ve investigated CP for N years, and in my experience, X…” is evidence establishing a probability. They do not need to negate the possibility that everyone else committed the crime to obtain a warrant. They do not need to establish to a scientific certainty that something is true, or disprove alternate explanations. The magistrate is not supposed to conduct a Daubert hearing before issuing a warrant.
People who live in the U.S., who know that while identity theft does happen, it isn’t common. Unless you’re a hermit, you talk to and interact with people every day, and you know that their identities aren’t routinely being stolen. Magistrates are allowed to use common sense.
October 8, 2009, 7:33 pmPatHMV says:
Well, Cleanville, you’re the one claiming that there’s so much identity theft that it’s more probable than not (or at least equally probable) that a person using your e-mail address and accessing your bank account is not actually you. Do YOU have any statistics to back that up? Don’t feel compelled to respond, because you obviously are not worried about what the law (and the real world) actually is, so I’m not going to waste further time arguing the issues with you.
October 8, 2009, 7:33 pmSara says:
Of course, you are right that courts address the issues raised but as you know, that is not always the case in every area of the law and the limits on what they discuss are slim, perhaps the standard of reveiw should be more searching in this area of fundemental liberty? Why are there multiple guesses about what happend, above? Seems courts would do well to try to answer the questions of even laymen - even if its is to just say: no one disputes that the agents lawfully obtained x.
October 8, 2009, 7:35 pmOrin Kerr says:
David Schwartz writes:
I don’t understand this. The law prohibits receipt and possession. Mere visual observation does imply receipt or possession: True, photons of light bounce off the item and go into the eye. But the photons of light that reflect off child pornography are not themselves child pornography. So viewing an image through a window does not mean receiving anything. On the other hand, viewing an image on a computer requires actually bringing the zeros and ones to you at your local computer: the zeros and ones are actually received.
October 8, 2009, 7:35 pmCleanville Tziabatz says:
The probable cause question (or part of it) isn’t whether most people have had their identity stolen (I have btw), but whether a significant percentage of CP subscriptions are purchased with stolen identities. I have no idea about this. Neither do you. But the burden should be, in the first instance, on the one alleging “probable cause” to establish it.
As I mentined above, identity theft is only part of the probable cause question. As another part of it, there is the staleness issue explicated by Judge Moore.
With an old website like that, there may also be issues about whether it really had “patently illegal” images when the subscription was made.
Depending on whether they found out about the subscription through an informant, there could also be issues about whether the informant (eg, someone trading info for leniency) was reliable.
There are probably other plausible possibilities that tend to reduce the probabilistic quantum of cause. They ALL need to be considered under the Fourth Amendment, and they need to be considered IN THE AGGREGATE. Now, it is true that there may not be airtight conclusive studies about how many CP browsers keep their cyber porn for more than a year, but if there is NO real evidence presented in the warrant application on this commonsense factor tending to diminish probability of cause then the party that bears the burden of proof and persuasion (ie, the warrant seeking popo) should lose. I know it doesn’t work that way here in post 9-11 America, but fortunately people like Judge Moore are pointing us back in the correct direction, despite professor Kerr’s intransigence.
October 8, 2009, 7:54 pmDavid Nieporent says:
It might be helpful — though unnecessary — for the trial court to say that. But the appellate court is only addressing the issues on appeal. There are an infinite number of issues that could be a problem if someone is disputing, but that nobody is disputing in the particular case at hand.
October 8, 2009, 7:58 pmPatHMV says:
Sara, when they say “agents learned” without anything further, they ARE saying “no one disputes that the agents lawfully obtained X.” If anyone did dispute it, then the court would have addressed the dispute.
October 8, 2009, 7:59 pmOrin Kerr says:
Cleanville Tziabatz writes:
It has never worked liked that, actually. For example, in the early Internet child porn case of United States v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996), Judge Munson summarized the prior law as follows:
Id. at 460 (citations omitted). So as of 1996, this was already well established.
Of course, if you say “it doesn’t work that way here” to mean, “it is not actually what the law is,” then we agree, and I confess to my intransigence in faithfully applying it.
October 8, 2009, 8:12 pmAnon23 says:
Tangential question – why is ICE the agency responsbile for child porn?
Yes, I know some is produced overseas. That has always struck me as a somewhat tenuous rationale.
October 8, 2009, 8:12 pmCleanville Tziabatz says:
His common sense sense analysis is flawed because it only looks at part of the picture. Sure, one might want to keep the images because they are hard to get. OTOH, one might want to destroy the images because they are illegal, or because punishments for CP images tend to get more severe as the years go by. Then there is the question of whether older images remain interesting to the CP afficianado. I don’t view CP and I doubt Judge Munson did eiether. However, we all have regular, presumably-legal porn, of course. Speaking personally, I don’t keep the old stuff. Never have. It ceases to be interesting to me. Are most men this same way as me with regular porn or erotica? Does our experience with regporn map to how a CP lover relates to his CP? Who knows, but I do know one person who had no clue about this issue for sure: Judge Howard Munson.
Then there is the idea that the probability of hoarding (a fact issue) could be established by reference to “cases.” Whether he meant legal cases or simply anecdotes is unclear. Either way, the idea that either of these (uncited!!!) sources could ever be a good substitute competent factual evidence is laughable, or would be laughable if the delusion weren’t so pervasive and harmful. It is sad the degree to which the Orin Kerrs and the Judge Munsons have taken over criminal jurisprudence in post 9/11 America. It is nice to see Judge Moore working, thanklessly, to turn back the tide.
October 8, 2009, 8:36 pmProbable-Cause says:
It’s not only about the images! It’s not just collector mentality that needs to be addressed when considering staleness.
Is there probable cause that the agents will find evidence related to a crime (buying/receiving child porn) on the computer in the defendants house. That’s what the agents are looking for.
The computer stores a ‘treasure trove’ of information that may be helpful and relevant besides the actual images themselves. For example, is the web site bookmarked as a favorite? Is there going to be web pages or fragments of web pages that exist in the temporary files folder or even deleted but recoverable from unallocated space? Is there evidence that even the file names exist in the file system. Is there any evidence that the images were viewed by windows media player or some other program? Is there going to be an email message confirming access to the web site.
Is there other evidence on the computer to show precisely who was using the computer on the days the web site were accessed?
Computers (and modern operating systems) are designed to store lots of information about what we used them for ‘ease of use’ and simplify recurring tasks. Computer forensics is always slow to recognize and realize the significance of some of the data automatically stored by the operating system.
One other note: The PROTECT ACT of 2008 addresses ‘viewing’ or ‘intentionally accessing’ child pornography to address live web cam scenarios where no permanent storage of files exists. That law was enacted after this specific case.
October 8, 2009, 9:07 pmDavid Schwartz says:
I don’t follow. What is the distinction between the zeroes and ones that permit you to reconstruct the child pornography and the photons that permit you to reconstruct it? The zeroes and ones likely travel as photons through fiber optic cable. What is the difference, other than technology?
What definition of “receiving” makes one qualify and not the other? (Assuming in both cases that nothing is retained except in the mind of the viewer.)
October 8, 2009, 9:11 pmDavid Nieporent says:
Now I think “Cleanville” is just trolling. His attempt to rewrite centuries of probable cause law and his repeated red herring references to 9/11 give it away.
October 8, 2009, 9:36 pmSoronel Haetir says:
The binary values are stored somewhere. The photons on the other hand are not stored in any concrete sense. Even if the image data never reaches disk it is resident in memory in a more tangible form than the photons in the window example.
How about this example, entirely silly I know: the window viewer takes photos through the window with a film camera and does not get the film developed. Has the viewer done either of receipt or possession?
October 8, 2009, 11:11 pmDavid Schwartz says:
Soronel Haetir: This is a purely semantic difference. Sure, the photons are not stored, but so what? (In fact, the ones and zeroes themselves are not stored either, they are replicated and destroyed over and over. They only notionally ‘travel’ the whole path.)
The child pornography is stored in the photons, just as it is stored in the ones and zeroes. In both cases, the storage could be made permanent, but could also be ephemeral — just long enough to view. (Or they can be thrown away without viewing.)
The person who takes photos has taken a step toward possession, IMO, comparable to knowingly ordering printed matter to be delivered and perhaps even greater than that. The difference (for the purposes of possession) is a demonstration of an intent to take control.
As for receiving, I’m not sure. I genuinely don’t know what “receiving” is supposed to mean if it’s not identical to “taking possession”. I’ve yet to hear any definition that did not either make them identical or make one a strict subset of the other.
I’m open to someone who can draw a meaningful distinction. How can you knowingly possess something without receiving it? And if Congress meant to make merely viewing child pornography a crime, why would they use the word “receiving” to do it?
October 9, 2009, 12:14 amOrin Kerr says:
David Schwartz,
Receiving is generally understood to mean “coming into possession,” that is, controlling the thing to come to you. Thus, if you search for an image and intentionally retrieve it, you have controlled the image to bring it to you. Merely observing something does not control anything.
October 9, 2009, 12:15 amSoronel Haetir says:
One way to avoid receipt, though not real helpful, is production. Production carries its own punishment however. Is the receipt/possession issue really at all important for this case though?
For the matter of PC that evidence can be found at the given location and in the given place this case does in fact appear straightforward. And with the staleness argument, the more cases like this where continued possession is in fact determined even after significant time lag the more evidence there is for others to draw on when making the experiential argument that such cases don’t go stale. When you can cite cases going backto 1996 that such cases don’t go stale and the body of intervening evidence only serves to re-enforce that point I don’t see this becoming a winning argument.
It would be far more interesting to try and develop a civil rights case if this search had been a dud because someone had managed to steal this guy’s identity right down to his IP address. Any such case seems like it would be tough sledding, a reasonable officer would be able to rely on the sworn facts to believe that evidence of a crime would be present.
October 9, 2009, 12:40 amSoronel Haetir says:
I suppose receipt might vary based on whether the material is sought or not. Another silly example: person X mails child porn to random people, person Y mails child porn to a list of people who want it. Perhaps knowing receipt charges can only lodge against Y’s list and not X’s, though possession charges could lodge against any of X’s targets who in fact keep the material.
October 9, 2009, 12:52 amDavid Schwartz says:
So we’re back to “viewing” equals “possession”? Or are you arguing there’s some distinction between viewing over the Internet and viewing through space? If so, what is that distinction, other than technological? In both cases, the child pornography is copied, in both cases, a copy gets to the viewer, in both cases the viewer could keep a copy but doesn’t necessarily do so. In both cases, no effort is taken to retain a copy beyond what is needed to view it.
I guess I can see Soronel Haetir’s distinction. Knowing possession could include finding it accidentally and then knowingly acting to keep it. While knowingly receiving requires an intent to receive it whether or not one intended to assert a possessory interest. But that would criminalize intentionally viewing child pornography (and pretty much only that, as how else can you receive it without possessing it?), and it seems quite odd to me that Congress would do that by using the word “receiving”.
While that seems very improbable to me, it’s logically consistent as far as I can tell.
October 9, 2009, 2:08 amLekowitz says:
Congress enacting a poorly worded law that doesn’t clearly articulate it’s purpose, improbable?
October 9, 2009, 4:22 amDavid Schwartz says:
Well, if you’re going to argue that it’s unclear and poorly-worded, IMO the natural conclusion is that “receiving” and “possessing” mean the same thing. If it’s unclear, then it cannot be specifying some ultra-subtle distinction. (And in general, “receiving” means “taking physical possession and control of”.)
October 9, 2009, 4:51 amDavid Nieporent says:
It could be — but not for the issue of the search warrant, no. As some of the cases Moore cites indicate, if you browse the web but don’t deliberately save the pictures (though they would inadvertently be saved in one’s browser cache), you might not be guilty of possession, but only receipt.
October 9, 2009, 7:30 amCleanville Tziabatz says:
Probable cause started to erode, as an evidentiary standard, before 9/11, but 9/11 and all its attendant law’n'order jingoism has really accelerated the process.
The real problem is the exclusionary rule. Currently “probable cause law” (even that phrase betrays a fundamental understanding of the jurisprudential role that probable cause is supposed to play in keeping cops out of my house) is determined in context of some heinous criminal trying to stay out of prison where he belongs. We know the result we want. In this case, like all the others, we know the result we want. We want Frechette in jail. So we hand wave away “probable cause,” allow the magistrate to define it down to a nullity, allow Professor Kerr argue that it is a matter of law and not of fact. The end justifies the means. America is a war. War, war, lots of wars. And here is Cleanville wanting the troops out of his house. Silly Cleanville! You must love your troops better.
We need the exclusionary rule out of the picture. It is a black ops agent in the house of justice. What we really need is a remedy where somebody like Professor Gates gets to do things that will deter future bad conduct. Because, ultimately, Judge Moore’s brave and true defense of “probable cause,” in the context of exclusionary rule cases, is a bad hill to die on.
October 9, 2009, 8:17 amSeaDrive says:
How do you resolve the problem that you may not know what you have until after you receive it? Just about any link on a social networking site could lead to the display of CP on your computer.
October 9, 2009, 9:12 amDavid M. Nieporent says:
Cleanville, you haven’t shown a single point in history where probable cause meant what you want it to mean. (Let alone that anything has changed since 9/11.) And Moore’s dissent is not a brave stand against the war on terror, but simply a misunderstanding of the difference between receipt and possession. (The “staleness” argument she (and you) make so much of, even if convincing, applies only to the latter, not the former.)
The police are not supposed to have to try the case – including anticipating and refuting every possible defense that might be raised – in order to obtain a warrant.
October 9, 2009, 9:15 amCleanville Tziabatz says:
Probable cause is supposed to mean that it is “probable” (that is, more likely than not) that there is cause (in the context of search warrant, this means evidence of a crime).
In this sense, it is supposed to be highly analogous to a preponderance standard. However, the exclusionary rule has eroded probable cause to the point where people, like Professor Kerr, think it means something much less. If the magistrate held a civil trial (instead of a warrant hearing) and the issue was whether there was CP in Frechette’s house at the time of the trial, it is highly unlikely that the side arguing that the evidence was there would have won (maybe because of the priors, but generally unlikely and certainly NOT if there were no priors).
If you want to know what probable cause hearings should look like in the modern world, if the exclusionary rule had not so eroded society’s collective judgment, then the best place to start in Daubert v. Merrell Dow (S.Ct. 93(?)). That case explains how probabilities are and are not to be shown in the modern world. It is so far out of whack from criminal “probable cause” it is not even funny. In this case, the civil side has gotten the standards correct and the criminal side has been hopelessly subvrted by the don’t-throw-me-into-the-briarpatch politics of the exclusionary rule.
Time for a new Fourth Amendment remedy — one that is compatible with requiring “probable cause” to be, ummmmm, PROBABLE and established by competent evidence, rather than policeman-said-so.
remember, if we didn’t have the exclusionary rule, Fechette would still be in prison even if there wasn’t probable cause.
October 9, 2009, 9:58 amDavid Nieporent says:
Ah, I see your problem. You simply don’t know the law. Probable cause does not mean preponderance of the evidence. It is not “supposed” to mean preponderance of the evidence. It’s not anything close to preponderance of the evidence, wasn’t anything close to preponderance of the evidence before 9/11, and wasn’t anything close to preponderance of the evidence a century before that. It has not “eroded” as a result of the exclusionary rule.”
“Probable cause” does not mean “more probable than not.” Rather, it means something closer to “reasonable grounds for belief,” and “probabilities” in the mathematical sense are irrelevant. (Your reference to Daubert, which I anticipated above, just illustrates your confusion. You’re applying completely the wrong standard.)
October 9, 2009, 10:25 amCleanville Tziabatz says:
No. Before the exclusionary rule started being introduced into Fourth Amendment law (that is, before 1914 or therabouts), the standard for probable cause was whether the totality of the circumstances would cause “a man of prudence and caution in believing” that there had been a crime justifying seizure or was evience justifying a search.
Would a “man of prudence and caution” ever form an affirmative belief based on less than a preponderance? The answer is clearly no. It might take merely a preponderance at a bare minimum. It might take something more, if “prudence” means what I think it means. But, clearly a “man of prudence and caution” would never “believe” based on anything less than a preponderance. That is what “probable cause” meant before the exclusionary rule rendered it a meaningless construct. Pull Stacey v. Emery if you do not believe me.
I am afraid you are the one who does not know the pre-Exclusionary Rule meaning of “probable cause.” Yet somehow you think you do.
October 9, 2009, 12:27 pmmethodact says:
How very Fahrenheit 451.
October 9, 2009, 12:33 pmSoronel Haetir says:
Except that it’s a question of whether there is reason to believe that evidence will be located at the site and amongst the named items. Preponderance of the evidence is a proof standard, as are clear and convincing and beyond reasonable doubt. Probable cause is lower still, and reasonable suspicion less demanding than PC. The lowest level in this chain that I’ve seen used is articulatable suspicion.
A different example of how easily PC can be met, you pick up someone for passing counterfeit currency, they tell you that they bought it from Arty at X address. So long as your informant is able to describe X without being taken there you have enough for PC. Some post search challenges can be made to this, such as the informant not being trustworthy etc, but they will generally fail in the case where the evidence is actually found at X. An innocent person at X would have a better case in the instance of a lying informant.
The point of the above example is that PC is a fairly low standard, the evidence to generate it can be one sided so long as no material known facts are not included. It is not based on totality of evidence.
October 9, 2009, 12:58 pmDavid Nieporent says:
Arguments that have merit do not use the word “clearly”; if it were clear, you wouldn’t need to say it. It’s not “clear” at all that your claim is right; in fact, it’s wrong. At no time did the court ever apply a preponderance standard. I’m familiar with Stacey v. Emery, upon which you’re putting your own gloss which is not present in the decision. But even if I let you have that, I’ll give you Locke v. U.S., 65 years before Stacey: “circumstances which warrant suspicion.”
(Indeed, Stacey itself rejects your misinterpretation, explaining that probable cause means reasonable cause, and citing to earlier cases such as Carrington which defined it as a “well-founded suspicion.”)
October 9, 2009, 1:21 pmCleanville Tziabatz says:
The facts of Locke clearly met the preponderance standard. The facts of Locke probably met a “beyond reasonable doubt” standard.
Therefore, to the extent that Locke is taken to suggest a standard less rigorous than the modern Terry stop standard, it was speaking in dicta
On the other hand, if Locke‘s phrase “even light” means “equipoise,” then Locke explicitly said (albeit in the archaic language that was in style circa 1813) that “probable cause” means what a modern lawyer would call “preponderance of the evidence.”
At any event, Stacey spoke more clearly. A reasonable man would never form a belief on less than a preponderance. And, it should also be considered that there was not a huge need to expound upon the phrase “probable cause” back in those pre-Exclusionary Rule days when this Constitutional phrase was still interpreted according to its plain meaning, to wit, that cause exists as a probability in fact.
October 9, 2009, 2:51 pmDavid Nieporent says:
Stacey did not say this; that’s merely your misinterpretation of its words. No court has ever said this. Every case that has considered the issue has stated explicitly that probable cause is less than a preponderance. What Stacey did say explicitly, as I noted, that “probable cause” means “reasonable cause of suspicion,” and what Stacey did say explicitly was that (pre-exclusionary rule) cases such as Carrington properly define the meaning of the phrase.
I see. So we should ignore the cases after 1914 because the exclusionary rule distorted the meaning, and we should ignore the cases before 1914 because before the exclusionary rule came along and distorted the meaning, the court didn’t need to explain what the meaning was. (Ever notice how conspiracy theorists always have nice neatly-packaged explanations for why they can’t be disproven?)
October 9, 2009, 3:31 pmLeo Marvin says:
David S., sounds like you have a quantum mechanics problem.
October 9, 2009, 4:36 pmCleanville Tziabatz says:
Let’s be clear: Stacey said that the evidence had to be such that a “man of prudence and caution” would “believe,” not “suspect,” but rather “believe.”
I said that no “man of prudence and caution” could possibly form a “belief” (as contrasted with a mere suspicion) based on anything less than a preponderance. As I understand your criticism, you are saying that my inference is wrong because it was not an inference that Stacey expressed. It is true that Stacey did not explicitly make this inference. Still, it is an unavoidable inference based on the meaning of the words, “belief,” “prudence” and “caution.” Cautious men simply don’t form beliefs based on less than a preponderance. Rather, that is what incautious and imprudent men do. And that was as true in the 1800s as now. This may blow your ‘lil post-9/11 mind, but that makes it no less true.
October 9, 2009, 7:29 pmCleanville Tziabatz says:
Nor am I saying that all post exclusionary rule cases have the wrong standard. Generally, they tend to be very coy about the issue of the quantum of probability “probable cause.” OKLAHOMA PRESS PUB. CO. v. WALLING, 327 U.S. 186 (1946) actually says it means “probability in fact” which is consistent with the pure and simple, pre-exclusionary rule originalist meaning which is the correct meaning. Most the cases from the Weeks through September 10, 2001 era do a funky, mystery dance when it comes to the issue of whether “probable cause” requires a preponderance.
It is only very recently (read: post 9/11) that our prosecutor heavy bench has started to be clear that they think something less than a preponderance will suffice. People like Judge Moore have decided to do something about it. I have decided to do something different, because I am creative like that:
ABOLISH THE EXCLUSIONARY RULE!
October 9, 2009, 7:37 pmAbu Nudnik says:
The judge says:
But are judges not to decide issues based only on guilt and innocence, not on the practicality of the law or law enforcement?
How is that her concern as a judge? That’s a police issue. Nor is she allowed to consider the consequences of her decision: she is to decide on guilt/innocence and constitutional/unconstitutional grounds alone.
October 9, 2009, 8:31 pmOK, just breathe… « Bren’s Mental Dump says:
[...] just breathe… First up: I hate it when Technical ignorance is deciding the laws. Technically, There is no difference between browsing and downloading. The only real difference is that the browsing files might be deleted after a year, but I seriously [...]
October 9, 2009, 9:11 pmCleanville Tziabatz says:
She is concerned about the standards being such that police have the discretion to come, without the occupant’s permission, into a majority of American homes. She knows that that cannot be right and, indeed, it is not.
One can argue that that is more a problem of the criminal part of the law of copyright infringement, but her position seems to be it is a problem better addressed, at least in part, by the “probable cause” requirement of Fourth Amendment law, and that view does have considerable appeal to people who aren’t bedwetters or wannabe prosecutors.
October 9, 2009, 9:21 pmDavid Schwartz says:
You have then neither knowingly received it (since you never intended to receive it) nor knowingly possessed it (since you never asserted any control over it).
If you want to argue that you can knowingly possess something without having knowingly received it, I have some sympathy. But I would argue as soon as you switch from “unknowingly possessing” to “knowingly possessing”, you have knowingly received. (Though I’m not committed to that position.)
October 9, 2009, 9:34 pmSoronel Haetir says:
Cleanville,
Even under the test you propose there is ample reason to believe it is more likely than not that evidence of criminal activity would be found at the given house on computers. The house had been matched to the IP used and the account records to the resident. Probable cause does not require negating all possible counter-arguments.
I am still trying to figure out whatever evidence/knowledge in the possession of the police, rather than just imagined situations, you would point to in this case that point away from PC being present.
And again, the more cases like this where prolonged possession is demonstrated without counter cases of non-possession the more reasonable it becomes to credit such experience in the future.
Perhaps you wish to argue against such experiential inferences being allowed to form the basis of PC. I can’t help you much if you want to start arguing against situations like police observing people exchanging money for small glassine packets of white powder and in the experience of the officers it’s a drug transaction rather than someone on the street buying sugar or wheat.
October 9, 2009, 10:22 pmCleanville Tziabatz says:
1. No, probable cause doesn’t require negating all innocent possibilities. It does, however, requiring weighing and considering them. This is true even under the Orin Kerr type defo of probable cause.
2. There may have been probable cause here because of this guy’s priors. Unlike Orin Kerr, I think this is a close case, and not a no-brainer, under the proper “probable cause” standard. I said as much in a previous post on this thd.
3. This case only came up to an appeals court because this guy Frechette is a true pedo. That fact is a consequence of the exclusionary rule being the primary mechanism by which 4a is enforced. I would rather that police had a motive to show “probable cause” in a case where there was no CP. That won’t happen unless and until there is a different mechanism (WITH TEETH AND DETERRENCE) for enforcing 4a. With fundamentally different 4a enforcement remedies, different cases would come up to the appeals court, which is what should happen. Like I sed above, abolish the exclusionary rule!
October 9, 2009, 10:34 pmSoronel Haetir says:
A case like this where there was no CP found the police would still likely be shielded. in a non-exclusionary rule framework. The IP address is plenty to go on. It may turn out that the computers had been zombies and that the resident sex offender was in fact innocent of any new wrongdoing, but the question isn’t about whether evidence will be found against the resident. The question is whether evidence will be found. Even assuming all computers are zombies to some master there would still likely be evidence present.
Were you reading a couple weeks ago when we discussed a case where a panel majority did in fact find PC to be so lacking that no reasonable officer could rely on the warrant? That post provides a good example of how low the threshold actually is. Note that is a civil rights case, not an exclusion case.
October 9, 2009, 11:25 pmTim says:
I beg your pardon, Professor, but you’ve clearly overlooked the critical point. That something was “learned” by law enforcement does not make it “legal.” I suggest that you start over and read carefully, as it’s clear that you’ve missed the most critical piece of information.
I might further add that lacking any evidence that this information was obtained legally, it is presumptively invalid. The burden is on the government to show otherwise, NOT on the defendant.
October 10, 2009, 4:36 amSoronel Haetir says:
Even Moore doesn’t question whether the information was learned through legal means. Honestly I believe you are barking up the wrong tree here. If it were actually in question the defense either would have saved the issue for appeal or the guy has a great IAC claim. Assuming the later is not the case the defense friendly judge at least would not have over-looked the issue.
Would it be possible to find the warrant and affidavit using PACER? It would not surprise me at all if the warrant laid out the basis for how the information was learned. Such is generally the case with informants, I see no reason the same wouldn’t be true with website records.
October 10, 2009, 8:20 amCleanville Tziabatz says:
Yes, this is the problem with 4a law.
This will change after the exclusionary rule is eliminated. In a perfect world, with fewer Orin Kerrs and Sonia Sotomayors, this would change at the the same time that the exclusionary rule was eliminated.
As far as non-exclusionary rule frameworks that have more teeth than section 1983 actions, what is your favorite proposal? Mine would be automatic payments for fruitless searches, stops and/or frisks. Sort of like how the airlines have to pay when you get bumped from a scheduled flight. The payments should only be really large if the police fail to make them within 48 hours. This is what courts should put into place in lieu of the exclusionary rule.
October 10, 2009, 10:12 amDavid Nieporent says:
If a majority of Americans have broken the law, and there’s evidence of this, then of course it’s right.
(That is, it’s right as a formal legal matter; as a political matter, obviously if a majority of Americans are breaking a law, it probably should be repealed.)
It may be a good policy, but you think “courts” have the power to appropriate money from the treasury?
Not only is this a falsehood, but it’s one that contradicts your repeated claims that we should ignore the scores of cases since 1914 that all say that probable cause is far less than preponderance. Well-founded suspicion. That’s what scores of cases say, notwithstanding that you found a single quote that wasn’t even about the fourth amendment that said something different.
October 10, 2009, 10:35 amCleanville Tziabatz says:
I think courts courts have the power to make whatever 4a remedies they want, including, but not limited to, prescribed money payments from the police to victims of their fruitless searches. This includes the power to increase a prescribed payment by a hundredfold if it is not made within 48 hours. Courts may not be able to order the money out of the police budget, but they do have the power to make police wish that they had compensated their victim as a voluntary matter with but a moderate payment (just large enough to keep the fruitless search level at below 50% on a systemwide basis).
If you doubt the power of the court, I suggest you pull Brown v. Board of Ed. (1950).
October 10, 2009, 11:29 amCleanville Tziabatz says:
Like I said, funky mystery dance. The words “probable cause” are much more clear than this exclusionary rule induced talisman. The exclusionary rule has made for some REAL BAD LAW (and its getting worse since 9/11).
October 10, 2009, 11:32 amSoronel Haetir says:
Brown only had force because Eisenhower was willing to enforce it. There is at least one famous case of a not so accommodating president.
October 10, 2009, 1:07 pmBillie Clowerd says:
Sorry to the huge review, but I’m really loving the new Zune, and hope this, as well as the outstanding reviews some other persons have written, will guide you decide if it’s the proper option for you.
February 21, 2010, 9:52 pm