PEOPLE OF THE VIRGIN ISLANDS, Pеtitioner v. TYDEL B. JOHN, Respondent
No. 09-4185
United States Court of Appeals for the Third Circuit
August 15, 2011
1324
McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges. Fuentes, Circuit Judge, Dissenting.
OPINION OF THE COURT
(August 15, 2011)
SMITH, Circuit Judge
Detective Sergeant Naomi Joseph of the Virgin Islands Police Department applied for a warrant to search Tydel John‘s home for child pornography, relying solely on an affidavit that established only probable cause to believe that she would find evidence that he had sexually assaulted several children at the school where he taught. In her affidavit, Joseph did not allege any direct evidence that John possessed child pornography, did not aver the existence of any connection between the two crimes, and did not claim either a good faith belief in such a connection or any basis for thinking that one had been established. In general, the affidavit provided no reason to believe that a person who has committed child sexual assault would be likely to possess child pornography. Despite these deficiencies, a Virgin Islands Superior Court judge issued the warrant, and Joseph‘s search turned up incriminating documents (but no child pornography). We granted certiorari to determine whether this evidence was properly suppressed.
I
On November 27, 2007, following a presentation by the Virgin Islands Domestic Violence Sexual Assault Council, several of John‘s sixth-grade students told school officials that John had touched them inappropriately. The school passed this information on to the police, and Joseph was tasked with investigating. She began by interviewing the complaining witnesses, several of whom accused John of sexually assaulting them in his classroom. The girls also advised Joseph that John maintained two spiral notebooks, one blue and one red, in which he routinely “ma[de] notations . . . regarding his students.” One student reported that John had written “inappropriate things about the female students of his сurrent class and previous classes” in the blue notebook. According to the
With this information in hand, Joseph sought a warrant authorizing her to search John‘s home. Joseph‘s affidavit set forth the above facts in somewhat more detail, and averred that “persons who commit sexual offense crimes involving children customarily hide evidence of such offenses, including notes, photographs, [and] computer files, in their homes and on their computer[s].” In addition to the red and blue notebooks, the warrant application sought permission to collect from John‘s home pornographic magazines, pornographic photographs of children, and computer files containing pornographic notes and photographs of children. A Virgin Islands Superior Court judge issued the warrant, as requested, on December 3, 2007, and Joseph led the law enforcement team that executed it shortly thereafter.
According to Joseph‘s testimony at John‘s suppression hearing, it was “[r]elatively early in the search” that the officers located a black bag containing the red and blue spiral notebooks mentioned in the affidavit. Joseph allowed the search to continue, because she was still “[l]ooking for any pornographic photos of children.” The officers under her charge found no such photos, but they nevertheless carted away several computers and ten black and white composition-book-style journals, in addition to the two spiral notebooks that the witnesses had identified. The journals (labeled “Tydel John Journals,” with dates) were retrieved from John‘s bedroom closet and a bookshelf, and did not resemble the spiral notebooks — which had already been seized by the time the journals were found.
While there is nothing in the “Tydel John Journals” that would constitute child pornography, they do contain evidence germane to the charges of aggravated rape, unlawful sexual contact, child abuse, and child neglect that John now faces. He therefore moved to exclude them from trial, arguing that Joseph‘s search warrant was invalid and that the search violated the
A panel of this court granted the Virgin Islands’ pеtition for a writ of certiorari, “limited to the question whether the decision of the Supreme Court of the Virgin Islands is inconsistent with Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), in its application of the good faith exception to the exclusionary rule.” Our order also directed the parties “to explain in their briefing the basis, if any, upon which this Court has certiorari jurisdiction to review the decision of the Supreme Court of the Virgin Islands as a ‘final decision’ within the meaning of
II
We first address the jurisdictional question propounded in our order granting certiorari, beginning with the text of the relevant statute.
The relations between the cоurts established by the Constitution or laws of the United States and the courts established by [Virgin Islands]
law with respect to appeals, certiorari, removal of causes, the issuance of writs of habeas corpus, and other matters or proceedings shall be governed by the laws of the United States pertaining to the relations between the courts of the United States, including the Supreme Court of the United States, and the courts of the several States in such matters and proceedings.
Reading these sentences together, it is plain that Congress intended for this court‘s certiorari jurisdiction vis-à-vis the Virgin Islands Supreme Court to mirror the United States Supreme Court‘s certiorari jurisdiction vis-à-vis any of the fifty state courts of last resort. We can therefore review by certiorari a decision of the Virgin Islands Supreme Court if that decision is “final” within the meaning of the United States Supreme Court‘s certiorari jurisdiction statute,
A ruling on a suppression motion is interlocutory in nature, and therefore does not obviously qualify as a “final decision.” See Di Bella v. United States, 369 U.S. 121, 131, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962). The federal Supreme Court has nevertheless held that an order granting such a motion is reviewable:
Although respondent has yet to be tried in state court, the suppression ruling challenged herein is a “final judgment” within the meaning of
28 U.S.C. § 1257(a) , and we have jurisdiction over this case. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975), we identified four categories of cases where the Court will treat a decision of the highest state court as final for§ 1257 purposes even though further proceedings are anticipated in the lower state courts. This case . . . falls within the category which includes “those situations where the federal claim has been finally decided . . . but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case.” 420 U.S., at 481. In this case should the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial, the State will be precluded from pressing its federal claim again on appeal.
New York v. Quarles, 467 U.S. 649, 651 n.1, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). This logic is directly applicable here. The Virgin Islands Supreme Court has “finally decided” John‘s federal constitutional claim, and
The parties have raised the possibility that
The Government argues that the establishment of the Virgin Islands Supreme Court does not change anything. In its view,
Because this is not an “appeal” and does not come to us from a “district court,”
III
We granted certiorari to determine whether the Virgin Islands Supreme Court‘s ruling is inconsistent with Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), in which the Supreme Court addressed the “good faith” exception to the exclusionary rule that it had previously established in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Because “the exclusionary rule is not an individual right,” but is instead a means of deterring
The Leon rule is a specific application of this general principle. As Herring described it, Leon holds that “[w]hen police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ on the subsequently invalidated search warrant.” Id. at 701 (quoting Leon, 468 U.S. at 922). A warrant represents judicial authorization of a particular search or seizure, and it is thought that exclusion will not deter police from relying on an invalid warrant unless the police should reasonably have known that the warrant‘s issuance would be found unconstitutional. We have identified “four limited circumstances” in which a police officer‘s reliance on a warrant will not be considered “objectively reasonable“:
- where the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit;
- where the magistrate judge abandoned his or her judicial role and failed to perform his or her neutral and detached function;
- where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or
- where the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.
John invokes the third of these exceptions to the Leon-Herring rule, arguing that Joseph‘s affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”2 Tracey, 597 F.3d at 151. We agree, because the catalogue of the affidavit‘s “indicia of probable cause” with respect to child pornography is completely empty. The Virgin Islands Supreme Court was correct in describing the affidavit as “wholly lacking in probable cause,” because “[e]ven a cursory reading of Officer Joseph‘s affidavit reveals that there is not a single assertion that John was in any way associated with child pornography.” 52 V.I. at 263, 262. To be sure, the affidavit provides reason to believe that Jоhn had committed sex crimes against his students on school property, and that he kept two particular pieces of evidence of
A belief in the existence of probable cause in this case requires believing that a person who has sexually assaulted a child is also likely to collect child pornography. Putting aside for the moment the reasonableness of such an assumed connection, that latter belief is not stated anywhere in Joseph‘s affidavit. The closest the affidavit comes is the averment that “persons who commit sexual offense crimes involving children customarily hide evidence of such offenses, including notes, photographs, [and] computer files, in their homes and on their computer[s].” But all this statement can be read to allege is that John, who stands accused of sexually abusing children, “customarily hide[s]” evidence of that crime in his home and/or on his computer. It does not allege that an individual in John‘s position also “customarily hide[s]” evidence of other crimes, in his home or anywhere else. Without such an allegation, it was unreasonable to conclude that there was probable cause to believe that John possessed child pornography.
It should be clear that the existence of an assault-pornography correlation is a question of fact that Joseph was required to allege (and to support with averments stating the basis for the allegation) if she desired to rely on it as the basis for a probable cause determination. It is not a legal issue to be entrusted to a magistrate‘s judgment as a matter of abstract doctrine. Either a correlation exists between the conduct underlying one сrime and the conduct underlying another, or it does not. Forming a belief regarding the answer to that question does not involve interpreting a statute, or analyzing a Supreme Court decision, or applying some common law doctrine. Because the question is one that can be resolved only through the evaluation of evidence, it must be alleged on the face of the affidavit in order to be considered for purposes of determining probable cause.
As the Second Circuit wrote in a case quite similar to our own, “‘[i]t is an inferential fallacy of ancient standing to conclude that, because members of group A’ (those who collect child pornography) ‘are likely to be members of group B’ (those attracted to children), ‘then group B is entirely, or even largely composed of, members of group A.‘” United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (quoting United States v. Martin, 426 F.3d 68, 82 (2d Cir. 2005) (Pooler, J., dissenting)). Then-Judge Sotomayor went on:
Although offenses relating to child pornography and sexual abuse of minors both involve the exploitation of children, that does not compel, or even suggest, the correlation [that a person who has committed one crime has likely committed the other] drawn by the district court. Perhaps it is true that all or most people who are attracted to minors collect child pornography. But that association is nowhere stated or supported in the affidavit. See [Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)] (probable cause assessments are to be made from “all the circumstances set forth in the affidavit“); [United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir. 2006)] (“All data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath” (internal marks and citation omitted)). . . . [A]n individual‘s
Fourth Amendment right cannot be vitiated based on fallacious inferences drawn from facts not supported by the affidavit.
Id. (footnotes omitted). Similarly, in United States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008), the Sixth Circuit held that it was “entirely unreasonable” for Leon purposes “for the officer executing the warrant either to infer that nexus [between child molestation and possession of child pornography] herself or to rely on her own subjective knowledge [of the existence of such a nexus] to claim reasonable reliance on the warrant.”
Just so in this case. We acknowledge the possibility that studies might show that a correlation exists between one crime and the other; or perhaps extensive investigatory experience might reveal a pattern substantial enough to support a reasonable belief on the part of a police detective. But Joseph‘s affidavit did not allege the existence of the connection in question, let alone any evidentiary reason to believe in it. She should not, therefore, be permitted either to draw an inference from facts not stated in the affidavit or to rely on her own personal knowledge. She was instead required to state all the relеvant facts in the warrant affidavit and submit them to judicial scrutiny. See, e.g., United States v. Stearn, 597 F.3d 540, 549 (3d Cir. 2009); United States v. Olvey, 437 F.3d 804, 807 (8th Cir. 2006) (“Where there is no evidentiary hearing before the magistrate judge, the probable cause determination must be based upon only that information which is found within the four corners of the
Requiring that a warrant applicant state explicitly her belief in the existence of a correlation like the one on which Joseph apparently relied, as well as reasons justifying such a belief, is not inconsistent with the fact that these affidavits are typically drawn by laypersons rather than attorneys. Even police officers who lack legal training are expected to know of the requirement that the factual basis for a probable cause determination must be stated in the affidavit. We dеmand nothing more than that an officer seeking a warrant explain why she is justified in entering a person‘s home and searching through his belongings. This insistence that law enforcement comply with a bedrock principle of the
Policing this requirement easily passes the cost-benefit analysis set forth in Herring. Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit‘s four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a prеeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and Leon and its progeny establish that an officer‘s conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one. See Herring, 129 S. Ct. at 702; Tracey, 597 F.3d at 151. Joseph‘s reliance on the warrant was “entirely unreasonable,” Tracey, 597 F.3d at 151; her behavior was, at a minimum, grossly negligent. Moreover, applying Leon in cases like the one at bar would risk encouraging police to seek permission to search for evidence of crimes unrelated to any known facts, based upon nothing more than unstated and unsupported hunches. It would reward law enforcement for grounding warrant applications in unexamined biases and stereotypes rather than in conscientious assessment of the facts and circumstances uncovered by the investigation. Leon and its progeny were never intended to ratify such unjustified intrusions into the privacy sаfeguarded by the
We are not persuaded by the cases that may be cited in support of the contrary conclusion. The prosecution relies on United States v. Haynes, 160 Fed. Appx. 940 (11th Cir. 2005) (per curiam) (unpublished), but that decision did not actually decide the question whether probable cause or sufficient indicia thereof existed. Haynes conceded that the warrant to search his home was valid insofar as it pertained to evidence of enticing a minor to engage in sexual conduct, but argued that the police lacked probable cause to believe he possessed child pornography. He did not, however, mount an argument on appeal that any of the exceptions to the Leon doctrine applied. The court therefore had no need to engage in serious analysis of the question whether the executing officers had acted in reasonable reliance on the warrant (though it noted offhandedly that they “clearly” had). See id. at 944. Moreover, the opinion leaves unclear whether the court was even faced with the question we address today, because it does not relate whether the warrant affidavit contained an averment purporting to link the suspected crime of child enticement to the search for child pornography. Haynes has no bearing on this case.
The Eighth Circuit‘s decision in United States v. Colbert, 605 F.3d 573 (8th Cir. 2010), carries more force than Haynes, but is distinct from the case now before us. A witness called police after observing Colbert pushing a five-year-old girl (whom he did not know) on a playground swingset while talking to her “about movies and videos the man had at his home.” Upon stopping Colbert‘s car and conducting a consensual search, police found a police scanner, handcuffs, and a “New York PD” hat. The defendant also admitted speaking to the girl about movies that he kept at his apartment. Id. at 575. On this basis the police obtained a warrant to search Colbert‘s apartment for child pornography, which they recovered and which Colbert moved to suppress. See id. at 575-76.
A divided panel of the Eighth Circuit ruled that the warrant was supported by probable cause. The majority argued that a tendency to sexually abuse or exploit children is relevant to the analysis of whether probable cause exists to search for child pornography, asserting that “[t]here is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.” Id. A suspected
it would strain credulity to believe that Colbert was attempting to lure the child there to watch, say, “Mary Poppins” or “The Sound of Music,” or to engage in basket weaving or a game of pickup sticks. The circumstances suggest that Colbert intended to victimize the child in some manner, and as the Supreme Court recognized nearly twenty years ago, “evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.”
Id. (quoting Osborne v. Ohio, 495 U.S. 103, 111, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990)). The implication is that combining the evidence of the defendant‘s suspected pedophilia with his specific desire to watch movies at his home with an unrеlated five-year-old girl provided probable cause for thinking that the movies to be watched were child pornography, intended for use in a seductive manner. The specific reference to watching movies at the defendant‘s home was crucial to the court‘s totality-of-the-circumstances assessment that probable cause was present. See id. at 577 (distinguishing Hodson and Falso on the basis that “[n]either case involved an application for a search warrant based on the defendant‘s contemporaneous attempt to entice a child“). Our case also does not involve a “contemporaneous attempt to entice a child,” and there is no suggestion that John had ever attempted to use child pornography or other videos to ensnare his alleged victims. Because all of the alleged assaults took place at school, it makes no sense to suppose that he would have kept child pornography in his home to aid him in his criminal endeavor. And at all events, as we have noted, Joseph neither averred the existence of a connection between the two types of conduct nor alleged facts from which the Superior Court judge could reasonably have inferred that such a nexus existed.
Furthermore, for reasons explained above, the Eighth Circuit‘s assertion that there exists an “intuitive relationship” between two distinct crimes is suspect. Notwithstanding its own precedent requiring courts to confine themselves to the “four corners of the affidavit,” Olvey, 437 F.3d at 807, the court found probable cause in an affidavit that provided neither evidence for nor an averment of the correlation in question. We consider ourselves bound to refer only to the contents of Joseph‘s submission to the Superior Court judge who issued the warrant, and (as we have explained) those contents cannot reasonаbly have been read to establish the requisite indicia of probable cause.
IV
It is settled law that a probable cause affidavit must set forth all the facts upon which the affiant seeks to rely in obtaining a warrant. The affidavit in this case omitted the linchpin allegation on which any reasonable belief in the existence of probable cause must have depended. Joseph therefore cannot be regarded as having acted in “good faith” within the meaning of Leon, and the Virgin Islands courts were right to suppress the illegally-seized journals. We will affirm their judgment.
FUENTES, Circuit Judge, Dissenting.
In Davis v. United States, The Supreme Court made it clear that the sole purpose of the exclusionary rule is to deter
Following a presentation to Tydel John‘s sixth-grade class on the difference between appropriate and inappropriate touching, several students reported that John had engaged in inappropriate contact with them. After interviewing some of the students, police officer Naomi Joseph submitted an affidavit and request for a warrant to search John‘s home. The affidavit stated that “persons who commit sexual offenses involving children сustomarily hide evidence of such offenses, including notes, photographs, computer files, in their homes and on their computer.” (J.A. 108, 182). Based on this belief, Joseph concluded that she would find notebooks, pornographic photos of children and computer files containing pornographic notes or photographs of children. A Superior Court Judge determined there was probable cause to believe evidence of sexual contact would be found in John‘s home. Ultimately, police searched John‘s home and, while looking for evidence of child pornography, they found notebooks containing chronicles of John‘s exploitation of young girls.
On John‘s motion, a Virgin Islands superior court judge, relying on the Sixth Circuit‘s decision in United States v. Hodson, 543 F.3d 286 (6th Cir. 2008), held that because a warrant establishing probable cause for child molestation does not necessarily provide probable cause to search for child pornography, John‘s notebooks must be suppressed. I believe that the Majority decision affirming that suppression to be wrong under the good faith exception to the exclusionary rule and contrary to the Supreme Court‘s most recent pronouncement of that rule in Davis v. United States, 564 U.S. __, 131 S. Ct. at 2428 (2011). In short, “[b]ecause suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety,” I respectfully dissent. Id. at 2423.
II.
My disagreement with the Majority is not that a correlation between child abuse and child pornography was not properly established. Indeed, there may be a nexus. As then Circuit Judge Sotomayor, observed, “[p]erhaps it is true that all or most people who are attracted to minors collect child pornography.” United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (Sotomayor, J.). And perhaps it is not.2 In this case, I agree that the judge who issued the warrant should have insisted on a more direct connection between child abuse and child pornography. But, in my view, the failure to allege the connection between the two does not support the Majority‘s view that Officer Joseph was “grossly negligent” and that failure does not justify the extreme sanction of exclusion.
The Supreme Court has articulated two principles that limit the application of the exclusionary rule. The rule applies “only where it result[s] in appreciable deterrence” and, even when it does, “the benefits of deterrence must outweigh the costs.” Herring, 555 U.S. at 141 (citing Leon, 468 U.S. at 909, 910) (internal quotation marks omitted); see also Davis, 564 U.S. __, 131 S. Ct. at 2422. There is likely to be no appreciable deterrence “when an officer acting with objective good faith has obtained a search warrant and acted within its scope” because “[i]n most such cases, there is no police illegality and thus nothing to deter.” Leon, 468 U.S. at 920-21. On the other hand, when an officer exhibits “deliberate, reckless, or grossly negligent disregard for
The Majority believes that its decision will have a deterrent effect because Joseph‘s behavior was, “at a minimum, grossly negligent.” (Maj. Op. at 16.) This is a factual determination that is not supported by the record. Cf. Franks v. Delaware, 438 U.S. 154, 155, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) (concluding that a defendant must prove by a preponderance of the evidence at a factual hearing that an affiant knowingly, intentionally, or with reckless disregard for the truth, included
The Majority further concludes that the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official beliеf in its existence entirely unreasonable,” and hence culpable enough to be deterred by applying the exclusionary rule. (Maj. Op. at 11 (quoting United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010))). However, applicable precedent requires us to determine the culpability of a police officer‘s conduct in an objective fashion, asking whether “a reasonably well trained officer would have known that the search was illegal in light of all the circumstances.” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23).
In this light, the question is what a reasonably well trained officer would have known when applying for a warrant in December 2007. Such an officer would have known that probable cause exists when there is a “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), but little else. In December 2007, there were no precedents applying this broad standard to analogous facts. Under such circumstances, a reasonable police officer would do exactly what Joseph did: she would submit a request to a judge asking whether there is probable cause for a warrant. And, lacking legal training herself, she would then rely on that judicial determination to do her job. One might argue that suppressing evidence obtained when a warrant is invalid would encourage police officers to scrutinize the warrant closely and point out legal errors. But police officers are not lawyers and this argument was expressly rejected in Leon as “speculative.” 468 U.S. at 918.
The reasonably well-trained officer would fare no better today. While that officer would have the benefit of several court of appeals opinions discussing the issue of whether probable cause to believe that someone has molested a child automatically provides probable cause to believe that someone will possess photographic evidence of that crime (or photos used tо facilitate the crime — tools of a despicable trade), those opinions provide conflicting guidance. Compare Hodson, 543 F.3d at 292, 293
The split in the courts of appeals that have addressed this issue shows that even judges, steeped in the law and acting in the utmost good faith, can have different opinions on the issue. If even the experts cannot agree on whether probable cause to search for evidence of child molestation provides probable cause to search for child pornography, it was not objectively unreasonable — let alone, entirely unreasonable — for Joseph to take one side of the controversy over the other, even if we now disagree with that decision. Cf. Leon, 468 U.S. at 926 (noting divided opinion among judges as to the existence of probable cause in that case and then observing that under such circumstances “the officers’ reliance on the magistrate‘s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate“); see also Falso, 544 F.3d at 128 (stating that this is an issue “upon which reasonable minds can differ” before concluding that police officers acted in good faith).
Even the Second Circuit, which quite correctly found the supposed connection between child molestation and child pornography to be nothing more than an “inferential fallacy of ancient standing,” could not come to the conclusion that a police officer acting on a warrant based on such an assumption was entirely unreasonable. See Falso, 544 F.3d at 128 (“Once the district court rules on the legal sufficiency of the facts alleged in the affidavit, the officers were justified in executing the warrant.“). It is not difficult to see why. Probable cause determinations are not, and never have been, based on rigid logic. As the Supreme Court explained almost thirty years ago, evidence must be “seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. . . . [P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232. It was not unreasonable for Joseph to assess the probability
A comparison with the Supreme Court‘s recent decision in Davis makes this clear. In Davis, the Supreme Court declined to apply the exclusionary rule where the police followed a court of appeals precedent authorizing their search of an automobile because “[a]bout all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn ‘what is required of them’ under
Joseph‘s mistake was not the error of culpably omitting a crucial fact linking child molestation with child pornography. Her mistake was in thinking that the facts she did provide — that “persons who commit sexual offense crimes involving children customarily hide evidence of such offenses, including notes, photographs, [and] computer files, in their homes and on their computer[s]” — were sufficient to establish probable cause to search for child pornography. In other words, she believed there was a fair probability that a man accused of molesting children and recording his crimes in one medium — a written journal — might also record them in another — рhotographs. Although we might now wish that she had provided more specific justifications for this belief, Joseph‘s conduct was not entirely unreasonable. She made a mistake. But that mistake will not be undone by today‘s opinion.
Without a finding of deterrence, application of the exclusionary rule carries substantial costs:
Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.
Davis, 564 U.S. __, 131 S. Ct. at 2427 (citations omitted). For all of these reasons, I respectfully dissent.
Notes
The panel is in agreement that Joseph‘s affidavit did not provide probable cause to believe that any evidence or contraband other than the red and blue notebooks would be found in John‘s house. See infra, at 14-15; post, at 3, 5, 6-7. Generally, “where the evidence authorized to be seized exceeds the underlying probable cause justification, the proper course is for the court to redact that information from the affidavit of probable cause.” United States v. Yusuf, 461 F.3d 374, 389, 48 V.I. 980 (3d Cir. 2006). In this context, “redaction” means:
Id. (quoting United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1982)). Because there was no probable cause to justify continuing to search John‘s home for child pornography once the two specifically identified notebooks had been discovered, all evidence seized after that point — including the journals that are the subject of this appeal — is subject to suppression unless some exception to the exclusionary rule applies. The literature is mixed. Most of the studies are concerned with whether possession of child pornography causes the possessor to actually commit a sexual offense against a child. The reverse relationship — whether child molesters are more likely to possess child pornography — has been of less interest to scholars. It is clear that the “empirical literature is unable to validate the assumption that there is a causal connection between possession of child pornography and child sex abuse.” Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse, 88 WASH. U. L. REV. 853, 875(2011). But it is equally clear that the empirical data shows a high correlation between general pornography consumption and child molestation. See Neil Malamuth & Mark Huppin, Drawing the Line on Virtual Child Pornography: Bringing the Law in Line with the Research Evidence, 31 N.Y.U. REV. L. & SOC. CHANGE 773, 794 (2007) (“Overall, these data do indicate that child molesters have had more pornography exposure than other groups.“).[S]triking from a warrant those severable phrases and clauses that are invalid for lack of probable cause or genеrality and preserving those severable phrases and clauses that satisfy the
Fourth Amendment . Each part of the search authorized by the warrant is examined separately to determine whether it is impermissibly general or unsupported by probable cause. Materials seized under the authority of those parts of the warrant struck for invalidity must be suppressed, but the court need not suppress materials seized pursuant to the valid portions of the warrant.