United States v. Nicholas Needham

error plain establish cannot lez-Aguilar relief. not entitled to

and he is

AFFIRMED. America, STATES

UNITED

Plaintiff-Appellee, NEEDHAM,

Nicholas James

Defendant-Appellant.

No. 12-50097. Appeals, Court

Ninth Circuit. April

Argued and Submitted 14, 2013.

Filed June explained that in requesting opinion,

officer’s individuals who a sexual interest in children often pornography. A magistrate signed the warrant in reliance on the warrant affidavit, and, search, conducting while images the OPD found and videos of child pornography on an iPod Needham’s res- idence.

Needham suppress moved to the evi- dence of during seized ground OPD’s search on the that the OPD lacked suspect cause to The district court denied Needham’s mo- tion, concluding “good that the faith” ex- ception to exclusionary rule announced by the Supreme Court in United States v. (argued), Deputy Matthew B. Larsen Leon, Federal Public Defender and Sean K. Ken- (1984), L.Ed.2d 677 applied because the Defender, nedy, Federal Public Office officers’ reliance on objec- the warrant was Defender, Angeles, the Federal Public Los tively reasonable. CA, Appellant. for Needham appeals the district court’s de- Douglas F. (argued), McCormick Den- nial of affirm suppress. his motion to We Willett, Gannon, nise D. and Anne C. As- the decision of the district court. Attorneys; sistant United An- States Jr., Attorney, dré Birotte BACKGROUND Ana, CA, Appellee. Santa reported June mother five-year-old

OPD that her son had been molested in the restroom at a local mall. Specifically, she indicated that after her bathroom, emerged son from the he told her that a man had touched him. He area, motioned groin toward his which his BERZON, Before: MARSHA S. mother took TALLMAN, to mean that the man had RICHARD C. and MILAN SMITH, JR., D. Judges. penis. Circuit touched his The mother walked son, back toward the restroom with her

OPINION saw, sitting she on a bench near the SMITH, Judge: restrooms, M. Circuit a man whom she had exit seen just prior doing the bathroom to her son’s (OPD) An Orange Department Police so. When the mother asked her son if the officer obtained warrant to search Nich- sitting man on the bench was the man olas James Needham’s residence for evi- him, had touched he confirmed that it was. dence of child molestation. The officer He later stated that the man had touched also permission obtained the warrant to exposed penis fingers his with his “soft” pornog- Needham’s home for child raphy. Among things, “quickly.” other the warrant of obscene prohibits to the which the man described mother matter. male white being light-skinned

OPD thirties who early twenties in his late sought Franco a warrant Detective a col- and wearing beige pants been home, person, and au- search Needham’s that white lared, shirt long-sleeved Her sworn “Statement tomobile. that he also stated stripes. She with blue included all of the facts Cause” Probable bearing the Jamba holding cup had been above, including Needham’s described him exit the she saw logo when Juice history registration and as sex criminal restroom. indi- offender, the warrant did not though ulti- offense Needham was cate for what Bureau Detective Youth Services

OPD in- The affidavit also mately convicted. the incident. investigated Franco Leslie following paragraph: cluded manager Franco contacted Detective mall, at that Juice location training experience, of the Jamba and my upon Based foot- the store’s surveillance history, and reviewed criminal previous NEEDHAM’S matched a man who observed age. She other law en- my with and discussions suspect, description of the the mother’s I believe that professionals, forcement transac- from the store’s and ascertained in- an unnatural sexual NEEDHAM given his name as that he had tion records in I have learned terest children. his drink. She purchased “Nick” when he are found to ex- following characteristics digits the last four also obtained involving per- in be true cases ist and card he had used Express credit children, American buy, produce, who molest sons beverage, as well as purchase his sell, or trade authorization number. transaction’s prostitutes. with child are involved also viewed the surveillance boy’s mother gratification They receive sexual as the she identified “Nick” footage, and contact physical from actual satisfaction restroom, exiting the man she had seen minors, mi- with with communications later identified. and whom her son use fantasy involving the nors and from or electronic photographs pictures, contacted American Detective Franco on or sexual writing media and about ascertained, to a pursuant Express and col- minors. These activity with warrant, Ex- that the American sexually explicit material of children lect Juice “Nick” used Jamba press card magazines, consisting photographs, She then discov- belonged to Needham. DVD’s, tapes, video pictures, motion ered, that among things, other Needham media, and slides which electronic books reg- Orange, in and that he was resided gratifica- their own sexual they use for of Cali- offender the State istered sex rarely, fantasy. persons tion and Such that Need- Records also indicated fornia. , ever, sexually explicit of their dispose when May arrested ham had been materials, they when especially old, violating years allegedly he was 16 or made the vid- photographs taken the 288(a), pro- § which California Penal Code involved, materials are treat- as these eo lascivious acts with a hibits lewd or prized possessions. ed as ultimately age of 14. He had under the how did not elaborate Detective Franco violating Pe- charged been with California “characteristics” of learned the 288(a); she had § California Penal Code nal Code children, interest with a sexual 288.5, continuous those § which criminalizes in the affidavit although she stated age abuse of a child under sexual Ser- 311.2, assigned to the Youth § she had been 14; and California Penal Code in pursuant Bureau in December vices OPD’s search of his apart- capacity specialized investiga- ment, including the iPod. argued against tion of crimes children. Detective the warrant supported was not Franco also stated the affidavit that probable cause that he assignment, to that she had worked prior pornography, and that the lack officer, officer, patrol bike team crime cause was so glaring that the Leon excep- investigator, property crimes detec- scene tion apply. did not tive, officer, and school resource as well as The district court denied Needham’s in an undercover capacity numerous suppress. motion to commenting Without narcotics operations. and vice on whether the supported by warrant was application The warrant included a list cause, the court ruled that sought by of items the OPD. The warrant OPD executed good the search in faith any clothing authorized a search for warrant, reliance on the and that the Leon matching description of what Need- exception exclusionary to the applied. rale wearing day ham was at the mall the that suspected molesting boy. he was of It Reserving right his appeal to the district also authorized a for the search American motion, court’s denial of suppression his Express card that “Nick” had used pled guilty Needham possession of child majori- Jamba Juice. But the substantial pornography in violation of 18 U.S.C. ty approximately of the three-and-a-half 2252A(a)(5)(B). § The district court im- of page description items to be searched posed a sentence of imprison- 108 months’ describing was devoted to an exhaustive ment. Needham appeals now his convic- through all paper of Needham’s tion again argues that the evidence of documents digital and electronic and stor- possession his of pornography child should age pornography, devices for child or evi- suppressed. jurisdiction We have pursu- dence or distribution § ant to 28 U.S.C. pornography. than Other Detective Fran- opinions regarding predilections co’s STANDARD OF REVIEW sexually individuals who are interested children, provide any the warrant did not A district court’s denial of a motion to other pos- reason to believe that Needham evidence, suppress including applica pornography sessed child in his home. tion “good exception of the faith” did any Nor the affidavit include facts rale, exclusionary is reviewed de novo. suggesting that or 1174, v. Krupa, 658 F.3d a computer used or other electronic (9th Cir.2011); United States v. Mi devices, purposes whether for illicit or oth- chaelian, (9th 1042, Cir. erwise. 1986).

A judge Orange County Superior warrant, signed Court the search and the DISCUSSION OPD executed search of Needham’s resi- Needham first that contends the war- dence. Officers seized computers various rant affidavit did not contain facts suffi- devices, and electronic among which was cient to find cause search his Apple an iPod. The iPod was later discov- for par- residence In images ered to contain and videos of child ticular,- argues he that Detective Franco’s pornography. Needham was arrested and an assertions Needham “has unnatu- indicted for possessing 2252A(a)(5)(B). ral § violation of sexual interest children” and that 18 U.S.C. “[tjhese He suppress sexually moved to the items taken explicit collect ma- (internal (1986) citation omit- L.Ed.2d 271 inadequate sup- terial of children” ted). follows that if an officer It therefore pos- that Needham port immunity in a civil suit granted qualified is home. He in his sessed to be alleged a warrant relying on court erred the district also contends cause, on then reliance lacking probable exception to faith good Leon’s applying in that the existence case. in this exclusionary rule objectively have been must also ‘there when cause exists “Probable the Leon doctrine. under reasonable contraband probability a fair of Need- aspect of this The outcome be found will of a crime ” grant our is controlled appeal ham’s v. States place.’ particular in a case decid- immunity similar qualified Grubbs, 547 U.S. of Needham’s resi- after the search ed (2006) Illinois v. (quoting 164 L.Ed.2d Covina, City dence. 2317, 76 Gates, 213, 238, 103 S.Ct. (9th Cir.2011), addressed F.3d 892 (1983)). if a warrant is Even L.Ed.2d 527 opinion an officer’s of whether issue however, cause, unsupported by probable who molest children that individuals in evidence found suppression creates likely pornography child possess to that warrant is not to pursuant search suspected child to search probable cause the reliance on “the officers’ justified if for child pornography. molester’s home probable determination magistrate’s 42 a civil suit filed under ” was reasonable.... objectively cause was elementary Dougherty, § an U.S.C. 1983. 926, Leon, at 104 S.Ct. U.S. 468 teacher, alleged police that had school therefore, appro an “remains Suppression, me- computer and electronic searched his is based on remedy when a warrant priate cause, violation of in dia without lacking proba in indicia of so an affidavit 654 Dougherty, the Fourth Amendment. render official belief its cause as to ble There, requesting at F.3d 896-97. entirely United existence unreasonable.” allegations recounted officer’s (9th 827, Grant, 682 F.3d 836 v. States inappropriately that individual Cir.2012) (internal and citation quotes elementary at the school touched students omitted). at re- taught. he Id. 896. With pertains to the Leon doctrine While for child pornography, spect proceed upon in criminal hearings only that “based suppression the affidavit stated objective rea ... training experience standard of ings, “the same [the officer’s] criminal type States Su in this subjects that involved [the sonableness por- child possession context of in their a behavior have preme applied Court] defines the Id. We held that hearing nography. Leon ...’” suppression an immunity officer qualified accorded to search a sus- issued search warrant allegedly on an invalid obtained relied computer or and electronic pect’s home Millender, v. warrant.” Messerschmidt cause when equipment lacks — -, (1) 1245 n. attempt or possession U.S. no evidence (internal (2012) quotes was sub- 182 L.Ed.2d possess to omitted). (2) Supreme Court no issuing magistrate; citations mitted to the magis- “[o]nly where the war explained that submitted to evidence was lacking computer in indicia electronics regarding is so trate or application rant (3) only suspect; official belief as to render use probable cause attempted linking suspect’s will the shield in its unreasonable existence Briggs, Malley lost.” molestation immunity experience of the is the 335, 344-45, officer, Leon, requesting police with no further ableness under we cannot consis- explanation. tently grant qualified immunity to officers Dougherty, who relied on the warrant in concluded, however, 895. We also case, and find that reliance on a simi- in this circuit had law not been “[t]he (which type lar of warrant in this case was clearly regarding established whether alle- decided before Dougherty) objectively was gations of sexual misconduct molesta- unreasonable. We thus conclude that the place provide probable tion at a of work search in objec- this case was executed in por- cause to search a residence for child tively reliance on reasonable the search nography in the absence of an explanation warrant.1 tying together the two crimes.” Id. at 900. that, although therefore held the war-

We argues also that after United cause, rant searching lacked (9th Weber, States v. 923 F.2d 1338 Cir. qualified officers were entitled to immuni- 1990), no officer could reasonably be- ty. Id. lieved search Need- apartment supported ham’s by proba- Like the officers in Dougherty, the cause.2 already ble We addressed this OPD officers this case relied on a war Dougherty. There, issue in rant examined predicated on the bare inference that Weber, the facts of and concluded that likely those who molest children are “[i]f Weber, cause did not exist it Since the date cannot exist Dougherty, here.” Dougherty, we decided it is clear in this F.3d Nevertheless, inference, alone, at 898. circuit that such an we concluded that does time, at that probable point not establish cause to search a law was not settled suspected concerning question child molester’s home for child “the of wheth- pornography. molestation, alone, But er because the standard evidence of child cre- granting qualified immunity for probable is the ates cause for a search warrant objective same as the standard of for pornography.”3 reason- See id. at 899. children, 1. We therefore need not exploitation discuss to what ex- involve the that does tent, any, previous Needham’s criminal compel, suggest, not or even correla- [a] charges registration aas sex offender ...”); Hodson, tion. United States v. 543 F.3d support probable would cause under war- 286, (6th Cir.2008) ("[I]t 293 was unreason- rant. executing able for the officer the warrant in probable this case to believe that cause exist- 2. stating Weber involved an affidavit that the computers ed to search Hodson’s for child expect things officer "could certain to be solely suspicion based on a ... [the] houses" of child molesters and other engaged that Hodson had in child molesta- deviants who commit sex crimes. 923 F.2d at tion."). Circuit, however, Eighth had However, 1345. unlike the affidavit in this contrary. concluded to the See United States case, "there was anot whit of evidence in the Colbert, 573, (8th Cir.2010) v. 605 F.3d 578 indicating affidavit that Weber was a 'child ” ("[T]o sug- the extent that Hodson and Falso Instead, suspected molester.’ Weber was gest tendency evidence of defendant’s having received an advertisement for child sexually exploit to abuse or years prior children irrele- two to the search. analysis, Id. at vant to the we re- spectfully disagree.”). 3. At the time of the search of Needham’s Since the OPD's search of Needham’s resi- 2010, July home in two circuits held that dence, rejected two more circuits have evidence of child molestation does not question. Virgin inference in See Islands v. itself amount to cause that the sus- John, 412, (3d Cir.2011) 654 F.3d 419 pect possesses pornography. See United (“[T]hose Falso, 110, (2d allegations against sex crimes [of States v. 544 F.3d Cir. 2008) ("Although relating are not sufficient to minors] offenses to child establish —or pornography and sexual abuse of minors both even to hint cause as at — Cir.2011). (9th Covina, 654 F.3d 892 ambiguity found sufficient we Because a blank deciding this case on Weber, Were we to confer a despite precedent, our on slate, hold that the evidence I would immunity Dougherty qualified grant of suppressed, because iPod must holding 2011, from are foreclosed lacking was so search warrant reliance on good faith rendered that Weber reliance the officers’ as to render in 2010. impossible case the warrant See objectively unreasonable. it upon remaining arguments Needham’s 897, 923, Leon, v. United States an was not unavailing. The warrant (1984). 3405, 82 L.Ed.2d 677 as Need- “general warrant” impermissible very type upon the was based The warrant rather, specified claims;4 the warrant ham that, “rambling boilerplate” under (child pornogra sought what the officers circuit, has been disentitled law of this distri receipt of its phy or evidence and/or exclusionary exception to the Leon they bution), it was believed and where years. for over 20 rule (in paper docu it Needham’s would find (9th Weber, 1338, 1345 Cir. v. media). Similarly, electronic ments or 1991). Franco’s that Detective claims Needham explicit required, I. did not contain pos believed Needham that she statement molesting a suspected of the Su sessed basis, a mall restroom. On that child in a “the courts declared that preme Court has authorizing judge issued a warrant state by inter [a] not invalidate should search Needham’s house police to hypertechnieal, in a the affidavit preting description of his clothing matching the commonsense, manner.” than a molestation; rather day alleged outfit the Ventresca, 380 U.S. States pur- that Needham credit card used (1965). L.Ed.2d day; juice at the mall chase claimed that bills, Franco’s affidavit mail, documentation estab- Detective or other interest the resident identity an unnatural sexual lishing Needham had Needham’s far, good. unnat children, an house. So so people in and that with child in children often ural interest stop did not there. But the warrant of De the conclusion While pornography. pages, two-and-a-half an additional explicit syllogism was not Franco’s tective police authorize went on to stated, reading of ly a commonsense any for and all sweeping conduct a affidavit, that the warrant and the fact devices, storage data computers, electronic that indicate sought pornography, child house, devices, at Needham’s papers and Needham suspected Franco that Detective devices to search within those and then pornography. child for child papers AFFIRMED. supporting affidavit had If the warrant’s linking Needham any information included concurring: BERZON, Judge, Circuit perhaps then such to child pornography, sup- of search would been sweeping because the outcome only I concur affida- cause. City ported by probable by Dougherty v. is dictated this case that por- general warrant is one authorizes possessing child 4. A wholly separate crime rummaging per- "general, exploratory in Doyle, nography.”); United States Coolidge ("[EJvidence belongings.” v. New (4th Cir.2011) son’s 443, 467, 91 Hampshire, 403 U.S. S.Ct. support does not alone molestation (1971). pornography.”). L.Ed.2d for child cause to search matter, no such information. It refer- As an initial it vit included is hard to tell charge a decade-old criminal exactly enced what paragraph saying this is matter,” of obscene but did not “possession what, if anything, most of the words it whether Needham was ever con- indicate contains have to do with investigation charge, type victed of that what of “ob- of Needham. certainly There is in nothing issue, scene matter” was at or how that suggesting that Needham was charge, incurred when Needham was a suspected of “producing] ... child por- just possible made it not teenager, but nography” or “involved with prosti- probable that Needham would have child tutes,” so those phrases simply extra- pornography years his house over ten exactly neous. And who are the nefarious later. “[tjhese people” to whom paragraph history,

It was not Needham’s criminal refers? The phrase antecedent of that event, that the affidavit principally far from clear. Nor does the paragraph— justify upon relied the search for child or anything else the affidavit—affirma- pornography, following but the word cloud tively state that the affiant has vague associations between Needham Needham, cause to believe that particu- types and various other of illicit actors: lar, has downloaded child pornography upon my training Based and experience, computers onto in his home. previous history, NEEDHAM’S criminal Nevertheless, attempting give this af- my discussions with other law en- fidavit the reading “common-sense” professionals, forcement I believe that must, Gates, see Illinois v. NEEDHAM has an unnatural sexual in- 213, 238-39,103 76 L.Ed.2d 527 I terest children. have learned the (1983), we can investigat- assume that the following characteristics are found to ex- meant, ing paragraph, officer to be ist and true in cases involving per- saying something like: “I have learned children, buy, sons who produce, molest many? [some? most?] who mo- sell or trade child and who lest children also pornogra- collect child prostitutes. are involved with child phy. suspected Needham is molesting They gratification receive sexual Therefore, probably child. satisfaction from physical actual contact in his house.” minors,

with communications with mi- problem, so far Fourth fantasy involving nors and from the use concerned, Amendment is is that the affi- pictures, photographs or electronic davit nowhere states the officer’s basis for writing media and on or about sexual the asserted connection between child mo- activity with minors. These col- possession lestation and of child pornogra- sexually explicit lect material of children phy. explain why Nor does the affidavit consisting photographs, magazines, of the asserted connection strong is so as to DVD’s, motion pictures, tapes, video just make it possible likely not or but media, electronic books and slides which probable that possess Needham would they use for their gratifica- own sexual pornography child at his house at the time fantasy. tion and persons rarely, Such only of the search. The affidavit states ever, dispose sexually of their explicit that the detective learned the fol- materials, “[has] especially they when have lowing characteristics are found exist photographs taken the or made the vid- involved, eo and be true.” But as these materials are how did she learn this? treat- prized as possessions. reviewing empirical ed From studies?1 noted, empirical 1. As another court has the literature on links between child molestation magistrate police. The quirements on From investigations? past her own From course, must, a common-sense her col- of make investigations with past discussing “Law Order: watching provided. and basis is From of whatever leagues? assessment conceded, at prosecutor Gates, 2317. Even 462 U.S. at S.Ct. SVU”? it have hearing, that would suppression “Suffi- provided. has to be But the basis refer- had the officer “preferable” been to the presented information must be cient specific investiga- affidavit in the enced that official to deter- to allow magistrate on in which had worked she tions that cause; cannot be action mine his probable found to molestation were child suspects of of bare conclusions a mere ratification Nor does child possess at of others.” affiant any indication give longstanding conformity with these train- expertise or any special officer has law, and Fourth Amendment of principles crimes, years her nine beyond in sex ing reviewing a when held as we ap- and police officer general work similarly deficient warrant: (at time of months seven proximately to search warrant issued [A] warrant) investigating the broad electronic computer home and suspect’s against children.”2 category of “crimes when lacks cause equipment with cer- is to assert None of this (1) attempt possession no evidence not some officer did tainty that the sub- pornography child was possess the asserted belief about for her basis (2) no issuing magistrate; to the mitted explain not her she did connection. But magis- was submitted evidence affida- four corners of the within the basis computer or electronics regarding trate vit, that the district court is all which (3) only suspect; use court, to con- we, reviewing are able as a suspect’s attempted linking the courts to not the task of It is sider. molestation to child after the some basis detectives surmise experience is the defer to fact, up our hands and or to throw officer, no requesting police with they as- whenever sense” police “common further explanation. various distinct link between sert some types of crimes. added). (emphasis have difficult police I am mindful II. provide requiring police jobs. government does not even Tellingly, the determi- their

the basis for cause argue that the established try to corners the affi- the four nations within that Needham believe hypertechnical re- impose does not davit (9th Cir.2004) opinion supported (expert n. "mixed” and most and child "veteran pornog- affiant whether the studies concern molestation, investigator,” probable cause “wheth- sex raphy not crimes leads to excising "singu- likely to be found even after molestors are more could er child John, "boilerplate” Virgin larly unhelpful” from the affida- pornography.” Islands v. 502, (Fuentes, 412, (3d Cir.2011) vit); Seybold, 2 v. 726 F.2d 423 n. 654 F.3d Cir.1984) J., (9th (probable supported dissenting). 504 specified that he agent in affidavit DEA 2010; drug years’ experience enforce- had "14 July was sworn in 2. The affidavit "participated] in hundreds of and had ment” assigned to work that she "was affiant states Patterson, searches”); 492 United v. States a Bureau Detective as Youth Services 995, (9th Cir.1974) (probable cause investigation F.2d 997 specialized of crimes in the "experienced by supported observations 2009. against in December children” Cf. 705, Meek, agent”). & border 366 F.3d 712-13 United States v.

1199 Rather, is bare-bones for possessed purposes Leon if it rests entirely government rests its ease almost upon expert “foundationless testimony” that, argument on the even if the warrant and there are no extenuating circum cause, probable not the offi did establish stances, pressures such as time upon the upon cers who conducted the search relied investigation, that explain could the affida faith, objective good it in so Weber, deficiency. vit’s 923 F.2d at 1346. Leon, they found is admissible under 468 Leaving aside that happens Weber also to 897, 104 3405.3 U.S. case, a child pornography Weber’s hold deciding ques- this as a ings Were issue broadly applicable, gov and would impression, reject tion of I first would regardless ern this case subject of the argument. Leon carved out a limited ex- First, expert matter: testimony cannot exclusionary rule, ception holding support probable cause determination pursuant illegal that evidence seized to an when it merely consists “of rambling boil may still be admissible erplate designed recitations to meet all law searching objectively officers acted rea- needs,” opposed enforcement as to target sonable reliance on a warrant issued expert analysis particular ed case at 926, magistrate. neutral Id. at 104 S.Ct. Second, hand. at Id. 1345. when a war Leon, 3405. even under exclusion of rant upon issues the basis of such “ram remedy the evidence remains the proper bling boilerplate,” the Leon exception to where, here, as an officer relies “on a exclusionary rule does not apply. Id. lacking warrant based on an affidavit so 1345, 1346. at indicia of cause as to offi- render definition, Under Weber’s the affidavit cial belief in entirely its existence unrea- in this case was bare-bones: It contained Leon, 923, sonable.” 468 U.S. at “rambling boilerplate recitations” (internal omitted); quotation marks “fat[tyj,” expert “foundationless testimo- Grant, see also United States v. ny,” certainly “but no muscle.” at (9th Cir.2012). 827, It is unreasonable single 1346. paragraph, rely on a search warrant issued on the variety sweeping affidavit makes a ob- basis of an affidavit that “fails to establish servations about categories various argument at least a colorable (internal Grant, subcategories people, cause.” 682 F.3d at 836 most of which omitted). quotation marks simply nothing to do with the investi- gation paragraph of Needham. This is the type One of affidavit that does not suf- very definition of boilerplate: “[rjeady- purposes fice for Leon is known all-purpose language made or that will fit Leon, bare-bones affidavit. Cf variety in a of documents.” Law Black’s there, (noting S.Ct. 3405 (9th ed.2009). Dictionary Jumping around supported by warrant “was much more affidavit”). people from children” to “molest[] than ‘bare bones’ Under circuit, longstanding law of this an affidavit prostitutes” “involved with child Alternatively, government argues establish cause to believe that Need- properly begin "the warrant allowed law enforce- ham Amendment, pornography” ment to ... search for with. "Under the Fourth ... because if child were found in there must be cause to seize the possession, particular things Needham's that fact "could be named in the warrant.” Health, Inc., identity, relevant to show mo- Future [Needham's] States SDI tive, (9th Cir.2009) (internal prose- quota- and intent” in a child molestation F.3d so, omitted) Maybe argument (emphas- cution. but that is be- tion marks and alterations added). point, side the because the warrant did not es “that tending to show not include facts photographs ... ] “take[ actually ... consti- referenced pornography, pictures of child the ... video[s]” ma[ke] “ready-made” opposed as to pornography,” appears tuted paragraph any investigation just about were nudity, pictures insertion into or “when mere involving crime sex-related any type 474. this Id. at Given possessed.” portion that [this] “It is clear necessary children. other temporal and absence the facts not drafted with affidavit was application, in the warrant information defendant particular this of this case or objec- reliance on the warrant officers’ Weber, at And to F.2d 1345. mind.” unreasonable; “nothing the war- tively [in attempt affidavit does that the the extent pornogra- indicated when or rant] moles- between child a connection to draw Doyle’s home.” allegedly existed phy pornography, and tation at 475-76. is “foundationless.” that connection comparison is Hod- Another instructive what the officer affidavit references son, which, case, “it [was] “learned,” how or specify does not but was de- beyond dispute that the warrant it. where she learned cause,” for lack of because fective cases, several of our sister In similar “estab- supporting warrant’s affidavit apply the Leon circuits have declined (child crime probable cause for one lished 418-19; John, F.3d at exception. See molestation) requested a designed but Doyle, 650 F.3d 475- States v. entirely of an different search for evidence (4th Cir.2011); v. Hod (child 543 F.3d pornography).” crime (6th Cir.2008); son, 286, 292-93 Hodson, Circuit 292. And Sixth Falso, 544 F.3d but see United States v. that, circumstances, concluded under those Cir.2008). (2d An especially 125-30 exception apply. did not Id. at the Leon Doyle, in which the comparison useful Hodson, however, In there was at 292-93. excep held that the Leon Fourth Circuit evidence that the defendant had least some apply, tion did not and exclusion was computer purpose (spe- a for an illicit used remedy, applica “the appropriate where sexually cifically, engage explicit in a private a to search a tion for warrant he be- person online chat with a whom pornogra residence for evidence of child). id. at 287.4 lieved pictures that phy failed to indicate Nevertheless, any- the chat did not have by the resident were allegedly possessed “it thing pornography, to do with so provided in fact no indi pornographic executing the officer was unreasonable for alleg pictures cation as to when the were ... the warrant to believe In that edly possessed.” 650 F.3d at 463. comput- Hodson’s cause existed to search case, application included de solely on a ers for child based Doyle sexually allegations tailed suspicion' suspicion triggered —albeit children, only single but assaulted three Hodson had computer Hodson’s use—that conceivably related to “mention” of facts at 293 engaged in child molestation.” Id. “the statement that one of pornography: added). (emphasis to an alleged victims ‘disclosed Uncle officers to If it was unreasonable for Doyle pictures had shown the victim ” Doyle, there rely on the warrant Even nude children.’ Id. at 472. credible, in the it did was at least though the statement was some Hodson, fact, 12-year-old boy. chatting with an under- online as Hodson was Jersey Sheriff's cover detective from the New F.3d at 287. Department, representing himself who was possessed qualified immunity nude recent in holding the defendant Dougherty, no as to whether 654 F.3d 892. pictures evidence —albeit or pictures pornographic, were when Dougherty, we very evaluated a simi- in they were Hodson— —and lar warrant in the context of a Section in there was at least some evidence above, 1983 lawsuit. As noted we held that the defendant had used a the affidavit a mi- computer for sexual contact with a search warrant issued to search a sus- surely it was unreasonable for nor—then pect’s computer home and electronic rely in the officers to on the warrant this equipment probable lacks cause when Here, case. the affidavit did not include (1) no possession evidence of or attempt stray pictures mention of nude even the child pornography was sub- in Doyle, that was deemed insufficient (2) mitted to issuing magistrate; no computer the evidence of use that was magis- evidence submitted to the only deemed insufficient in Hodson. The regarding trate computer or electronics connection in the affidavit between Need- (3) by suspect; use only alleged ham’s child molestation and child linking suspect’s attempted investigating was the officer’s molestation to personal belief that “Needham has an un- pornography is the experience of the children,” natural in sexual interest fol- officer, requesting police with no further by disjointed rambling lowed some about explanation. broadly metacategory overinclusive Id. at 895. involving persons “cases who molest chil- Nevertheless, we in Dougherty also held dren, sell, buy, produce, or trade child that illegal the officers who conducted the

pornography and who are involved with qualified search were entitled to immunity, prostitutes.” in because law this circuit had not “[t]he know, clearly As reasonable officer should been regarding established wheth- allegations the Fourth er of sexual misconduct or mo- requires Amendment more. provide probable lestation ... The law of this circuit cause to long been search a residence for child “clear”: “[A] be broader [cannot] explanation in the absence of an tying than the on which it cause [is] together Weber, the two crimes.” Id. at 900. To based.” 923 F.2d at 1346. conclusion,

support Dougherty this noted III. question impres- was one of first circuit, split sion this other circuits had Leon, Considering precedents under questions,” Supreme on “similar and the then, I exception would hold that the Leon yet Court had not addressed it. Id. case, not apply does and that the evidence on the suppressed. iPod must be I square find it difficult to majority opinion correctly holding Dougherty quali- with its notes, may inquiry not limit our immunity holding. Dougherty fied relied precedents applying Supreme Leon. As the heavily on for its Weber us, recently Court reminded the Leon ob analysis, concluding that “[i]f jective equiva Weber, reasonableness standard is cause did not exist it cannot qualified lent to the immunity Section 1983 yet, exist here.” 654 And F.3d Millender, standard. See immunity analysis, Messerschmidt qualified its - U.S. -, 1245 n. apply did not or even discuss Weber’s (2012). Therefore, objectively 182 L.Ed.2d 47 that it holding further unrea- rely lacking outcome of this case is dictated our sonable to on a warrant as offender; and, importantly, the sex sex as was Weber of indicia experienced judgment detective’s Considering crimes id. at 899-900. warrant. en- link exists between those who that a that the affidavit implication Dougherty’s of in child molestation gage than the more deficient there was at issue sup- pornography. Common sense affidavit, is consid- child there id. Weber that, probability” fair under ports “a probable cause its tension between erable circumstances, officers totality of immunity holdings. qualified pornography. See Illinois find child would may it internal tension But whatever 213, 238, Gates, v. binding upon us as a contain, Dougherty (1983). L.Ed.2d 527 in the explained judge panel. As three of our panel, panels our and future qualified Yet grant of opinion, our majority’s Court, by Dougherty are constrained Dougherty compels applica- immunity in (9th Covina, 654 F.3d 892 Cir. City I exception here. there- Leon tion of the 2011), categorical a flawed whose decision fore concur. linkage will rule that there is no such TALLMAN, concurring: Judge, Circuit law ef- likely legitimate stifle enforcement por- proliferation forts to halt the because it is join panel’s decision I that the suggest This is not to nography. There is by existing compelled precedent. affect crime should suspected nature that, at the time search question no rights, Fourth Amendment defendant’s executed, relied the officer in warrant rather to underscore the but reasonable magistrate’s on the good faith respect to majority’s unwarranted refusal probable cause. determination ... that a leap sense an officer’s “common clean, agree I would also the slate were along predator child has moved potential magistrate that under the issuing with the looking and into the the continuum of circumstances, probable totality of the (Brew- Id. at 901-02 touching.” realm of home to search Needham’s existed ster, D.J., judgment). concurring precedent Our ac- reality seri- Blinding to this ourselves respect the need to the real knowledges surely as is the case for consequences, ous police officers experiences world pictured child victims those unfortunate crimes, juvenile sex but then investigate 30,000 pos- and 200 images videos declaring principle to apply fails Needham, al- police whom had sessed is no nexus be- categorically there ready was a child molester. shown collection of child molestation and tween circumstances of pornography. The categorical rule—and creating this why categorical illustrate such case by police common sense bolstered ignoring are unwise. pronouncements predators child sex experience with —the misinterpreted Dougherty court conclusive circumstances included: The (9th Weber, 923 F.2d 1338 Cir. States v. recently mo- that Needham 1990), pre-Internet a case that establishes five-year-old shopping victim a lested bathroom; only that when officer seeks to connect history for simi- an criminal mall (child molesters) B conduct, A to conduct including prior group arrest for lar pornography), the offi- (possession posses- and lascivious lewd behavior materials; belongs must show that the defendant Needham’s obli- cer sion of obscene inspector A.1 Customs group to register as a convicted gation previously banc), impact which stated that “Webercannot Dougherty also failed consider position support be read to Gourde's in United States v. our en banc decision —that Cir.2006) may Gourde, (9th (en for child 440 F.3d 1065 necessary the Fourth failed make show- Amendment standard for Weber es- ing. Dougherty The officers and here tablishing “a substantial basis for con- articulating sufficient detail succeeded cluding] that a search would uncover evi- to establish the defen- 236, wrongdoing.” dence of at 103 and, had molested children in the dants (alteration (citation original) S.Ct. 2317 experience, likely possess were officers’ omitted). and internal quotation marks Supreme As the cogently Court ob- stated States v. Reese that We United served in Gates: “[fjrequently in re- supporting affidavits warrants, state, quests for officers based process The does not deal with hard experience, on their that narcotics dealers certainties, but probabilities. Long with weapons. cer- Such statements probabilities before the law of artic- tainly appropriate may be consid- such, practical ulated as people formu- by magistrates in deciding ered whether to lated certain common-sense conclusions 1066, issue a warrant.” 775 F.2d 1074 n. 5 behavior; jurors about human as factfin- (9th Cir.1985) added). (emphasis Certain- permitted ders are to do the same—and ly, any link we would not allow officers to so are law enforcement officers. Final- imaginable. two crimes But when a sex ly, the evidence thus states, collected must be experience, crimes officer from grown man who enters a mall bathroom weighed seen and not in library terms of intentionally boy touches a on the scholars, analysis by but as understood penis likely possesses also pornogra- by those versed in the field of law en- phy, statement exists within the realm forcement. of common sense and deserves some defer- 232, Id. at 2317 (quoting S.Ct. ence. Cortez, 411, 418, States v. 449 U.S. cavalierly reject We should not so (1981)). 66 L.Ed.2d 621 empirical experience of sex crimes investi- gators linking lewd and lascivious conduct need to consign We revisit this issue and involving young children with of hypertechnical decisions like pornographic images objects of a legal dust bin of erroneous blanket predator’s sexual desires. And our deci- pronouncements reality. devoid of sions, Dougherty, easily like should not so dispatch these “common-sense conclu- “by

sions” made those versed in the field Gates,

of law enforcement.” U.S.

231-32, 103 S.Ct. “These are not

technical; they prac- are the factual and

tical of everyday considerations life on men, prudent

which not reasonable technicians,

legal act.” Id. at (quoting Brinegar

S.Ct. 2317 v. United

States, 160, 176, (1949)).

L.Ed. 1879 assessment magistrate here met only government provides images pornography' issue if the con- sesses —without evidence, relying crete without on infer- running afoul of Gates." Id. at 1074. ence, actually suspect pos- that a receives or

Case Details

Case Name: United States v. Nicholas Needham

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 14, 2013

Citation: 718 F.3d 1190

Docket Number: 12-50097

Court Abbreviation: 9th Cir.