531 S.W.3d 889
Tex. App.2017Background
- Police received three NCMEC cybertips from Tagged.com with chat logs tied by IP to Jennings's Comcast account and residence. Chat logs showed Jennings (stating his age ~27) engaging in explicit sexual discussions with persons representing themselves as 13–15 and requesting or soliciting nude images.
- HPD Officer Joseph Roscoe, an experienced Internet Crimes Against Children investigator, prepared an affidavit describing the chats, his training, and generalized behavioral traits of persons who sexually interest in children (including retention of child pornography at home and use of computers).
- The magistrate issued a search warrant for Jennings’s residence and electronic devices, authorizing a forensic examination; officers seized computer equipment that yielded child pornography.
- Jennings moved to suppress; the trial court denied the motions. He pleaded guilty to three counts of possession of child pornography, received deferred adjudication and ten years’ community supervision, and appealed.
- On appeal Jennings argued (1) the affidavit lacked probable cause to search his home and (2) the salacious communications cited were protected by the First Amendment and could not support probable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for search warrant | State: affidavit tied chats to Jennings by IP, showed sexual communications with persons representing themselves as minors, and linked Jennings to typical collectors, supporting probable cause to find contraband at home | Jennings: affidavit relied on generalized profile and insufficiently linked alleged conduct to possession of contraband at residence; analogous precedents show insufficiency | Court: magistrate had substantial basis; under totality and deferential review the affidavit established a fair probability contraband would be at Jennings’s home; denial of suppression affirmed |
| First Amendment challenge to use of salacious speech in probable-cause showing | Jennings: some chat content is protected speech per Ex parte Lo and cannot be used to support probable cause absent intent to induce illegal sexual act | State: Ex parte Lo does not bar using sexually explicit communications with minors as part of probable-cause analysis for possession of child pornography; affidavit contained additional unprotected conduct and links to contraband | Court: rejected Jennings’s argument; Ex parte Lo did not undermine the probable-cause finding here; issue overruled |
Key Cases Cited
- State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011) (standard for reviewing magistrate’s probable-cause decision and deference to magistrate)
- Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010) (probability standard for contraband location)
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (overbreadth of statute criminalizing sexually explicit online communications with minors)
- United States v. Weber, 923 F.2d 1338 (9th Cir. 1990) (affidavit insufficient where defendant not linked to child-pornography collector profile)
- United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (distinguishing Weber where affidavit expressly links defendant to collector profile)
- Manuel v. State, 481 S.W.3d 278 (Tex. App.—Houston [1st Dist.] 2015) (distinguishing cases like Bradshaw where nexus to home was weaker)