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.