Orin Kerr at VC has cited a 6th Circuit decision from September that produces an extraordinary result, particularly given the court’s lack of love toward defendants.  In United States v. Hodson, the police obtained a search warrant following an undercover, pretending to be a 12 year old boy, exchanging online messages that culminated in the defendant, who called himself “WhopperDaddy”, suggesting that he wanted to engage in oral sex with the “child”. 

During the course of the communications, WhopperDaddy claimed that he “favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew.”

The police, after identifying the defendant and locating his address, obtained a search warrant for child pornography.

Up to this point, all seems rather reasonable.  But not to the Circuit.

It is beyond dispute that the warrant was defective for lack of probable cause — Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography). Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial.

Going further, the Court addressed the Leon good-faith exception by holding:

The question we address here is whether the faceless, nameless “reasonably well trained officer” in the field, upon looking at this warrant, would have realized that the search described (for evidence of the crime of child pornography) did not match the probable cause described (that evidence would be found of a different crime, namely, child molestation) and therefore the search was illegal, despite the magistrate’s decision to the contrary. We conclude that any “reasonably well trained officer” would certainly have come to that realization if presented with this warrant.

Like Orin, my gut inclination would be to accept a reversal on a bad search warrant on face value, particularly coming out of the 6th Circuit.  But also like Orin, I find myself shocked by this outcome.  I feel like a traitor for saying so, but so be it.

While the crimes of child molestation and possession of child pornography are legally distinct, to reject any fact-based nexus seems ludicrous.  Yet the court not only rejected it, but did so with absolute clarity.  While it might be an unwarranted leap of faith to assume that possession of pornography suggests that the passive viewer will act upon his sick interest, that would not be the case in the other direction.  If someone is inclined to engage in the act of molesting a child, it is hardly a stretch to believe that he would also possess kiddie porn images. 

As Orin points out, this is hardly a novel connection.

Even the Supreme Court has linked the two. See Osborne v. Ohio, 395 U.S. 103 n.7 (1990) (“Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having “fun” participating in the activity.”).

While I can’t help but applaud any court for seriously scrutinizing the content and good-faith assumed in most search warrants, having seen far too many truly bad warrants rubber-stamped in the first instance and then blindly approved by the issuing judge on review, this is not one where reversal would be expected. 

Does this suggest a greater degree of tolerance from the courts toward child molestation and pornography, historically considered the most vile of crimes?  It seems impossible to imagine, but if you’re defending against a warrant like this, Hodson is certainly a decision to note.