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October 8, 2009
Is concern about child porn distorting normal criminal procedure rules?
The question in the title of this post is prompted by a split decision from the Sixth Circuit this morning in US v. Frechette, No. 08-2191 (6th Cir. Oct. 8, 2009) (available here). Though not a sentence case, regular readers of this blog should appreciate why the ruling has drawn my attention and has prompted my inquiry.First, the start of the majority opinion in Frechette, which happened to be authored by a district judge sitting by designation, suggests that this is a simple matter :
The issue in this case is whether it is probable that someone who pays approximately $80 for a subscription to a web site is likely to use that subscription. Because we hold that it is probable, we REVERSE the district court and REMAND this case.
But, as evidenced by the start and end of Judge Moore's dissent, there is perhaps a lot at stake and a lot being influenced by modern concerns about child porn downloading:
I wholly disagree with the radical view of probable cause expressed in the majority opinion — a view far more expansive than any circuit has taken to date — and, for that reason, I must vigorously dissent. The affidavit supporting the warrant in the instant case established a single fact particular to Frechette: Frechette bought a one-month membership to one website displaying child pornography. This is the sole basis upon which the majority rests its finding of probable cause, and the majority insists that this result is dictated by our case law and that of other circuits. Such an assertion, however, ignores the fact that the instant appeal is materially distinguishable from these prior cases....
I cannot think of any other circumstance where we have endorsed an invasion of a person’s privacy with so few facts from which to draw an inference that the intrusion would likely uncover evidence of a crime. What is the justification for such an unprecedented encroachment upon our constitutional protections? 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. We must remember, as the district court observed, that we “must not deny the protections of the Constitution to the least of us. There is no such thing as a fair weather Constitution — one which offers the harbor of its protections against unreasonable search and seizure only in palatable contexts and only to worthy defendants.” ROA at 46 (Sept. 17, 2008 Op. at 2).
UPDATE: Additional (and distinct) blog commentary on this case can be found at TalkLeft and The Volokh Conspiracy.
October 8, 2009 at 10:40 AM | Permalink
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Oh please. Normal criminal procedure should be the least of one's concern. Back in the 1980s the SCOTUS twisted normal *Constitutional* interpretation in allowing child porn to escape first amendment scrutiny.
Why anyone finds the majority result here surprising is utterly beyond me. It flows naturally from SCOUTS understanding that child porn is, like death, different.
And that's the proper response to the dissent. Child porn is different. It's just different. Why doe Judge Moore have to be so obtuse. It's different. different. different.
Posted by: Daniel | Oct 8, 2009 11:12:31 AM
This is the exact treatment witchcraft was accorded in the past.
It was such a horrendous crime, accusations of witchcraft were little different from convictions.
Posted by: peter | Oct 8, 2009 11:21:32 AM
I totally agree with Judge Moore's dissent, It is very dangerous to interpret the constitution because of the type of alleged crime. It would be helpful to read the courts decision in it's entirety but the link is not active.
I am merely a concerned citizen with no legal schooling.
Posted by: GmanZ | Oct 8, 2009 11:25:20 AM
If criminal copyright violation were as much an enforcement priority as child porn I would fully expect a subscription to a for profit service whose only function were the trading of music files to pass the probable cause threshold for a search. It doesn't say anything about who the actual subscriber was, but does indicate that someone at the site is more likely than not engaging in criminal activity which is all that is required to meet PC. It wouldn't even have to be aimed at gathering evidence against anyone living at the residence, it could be targetting the service itself, there would still likely be evidence to be found.
I don't see this as a matter of child porn being different at all. If the site facilitated both legal and illegal activity there would need to be more, although even there I would expect a demonstration that the legal activity was so incidental to the illegal to be enough to meet a showing of PC.
Posted by: Soronel Haetir | Oct 8, 2009 11:50:38 AM
Also worth emphasis is that the one-month period of membership was not renewed, and occurred 16-months prior to the issuance of the warrant.
That fact seems particularly significant. I could see this as a different case if the warrant was sought during the one-month or shortly thereafter, but this guy apparently paid for the site, did not renew it (which typically requires some affirmative action -- how many websites, from thevault.com or ESPN insider, let you join for a month, but the payments automatically continue until cancelled), and then stayed away for 16 months.
Posted by: Sentencing Observer | Oct 8, 2009 11:51:32 AM
"As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn." (Federalist, 63.)
Posted by: George | Oct 8, 2009 12:03:14 PM
Actually that very premise is wrong, that having a subscription means you will use it. The very reason companies like using a subscription model is the fact that most people won't use it, but keep paying. They rely on this in their pricing model. Gym memberships rely on this, video games rely on this. If you actually use their services they will incur costs to support you. But if you do not then it is free money.
The very idea they base their decision on flies in the face of business practice regarding subscriptions that has been in existence for more than decades.
Posted by: plutosdad | Oct 8, 2009 12:26:58 PM
Daniel, the Scalia/Bruce C. thread no longer accepts posts. Hopefully our host won't mind this off topic reply too much. You wrote:
"Assume the definition of petty larceny is stealing $500 and grand larceny is stealing $1000."
What if the defendant committed petty larceny for $500 ten years ago, and commits another petty larceny for $500 today? The state charges grand larceny because $500 + $500 = $1000. Which petty larceny makes it grand theft? Is it the current crime or the prior? They are indistinguishable. Bruce seems to argue the prior petty larceny is an element of the current crime and that element is written into the statues today though it was not in the 70s. While the argument may not prevail, you have to admit this appears unfair on its face. Bruce argues there are ways to deal with recidivism without using priors as elements to the current crime.
Posted by: George | Oct 8, 2009 12:31:58 PM
George,
Except that the elements of grand larceny do not include (1) a prior conviction for petty larceny (2) a theft of $500. If the state were to provide such a definition of grand larceny then such a prosecution would be entirely proper. But no state to my knowledge uses such a definition.
A different example, let's make up a crime called Dangerous Auto Theft. There are two ways to meet the elements for this crime:
(1) Steal a vehicle
(2) (a) Move the vehicle more than 100 miles from where the vehicle was taken from
or (b) Get caught going more than 25 mph over the speed limit in the vehicle.
Notice that (2)(a) is not itself an inherently criminal act, yet I believe that courts would uphold such a factor as part of an offense description if it were proved to a jury. Brown v Ohio, by my reading, would allow two counts of Dangerous Auto Theft to stand if someone were caught 25 mph over the speed limit and more than 100 miles from the point of theft. Each count would require a fact that the other did not. A count based on (2)(a) might even be able to stand based on odometer readings under some circumstances, even if the car is recovered within a 100 mile radius of the point of theft.
Posted by: Soronel Haetir | Oct 8, 2009 1:11:56 PM
The argument made by the dissenting Judge might be worthwhile had all of the facts been laid out in this blog. The strawman argument about Copyrighted material presenting the same basis for a finding of PC is absurd on its face. First, no reference in this blog was made to defendant being a registered sex offender or that the site he gained membership to was SOLELY dedicated to child pornography, that explicit images of child pornography were displayed on the home page of the website such that any person registering would have automatically viewed them, and that the law does NOT require downloading or otherwise capturing child porn images but merely viewing them in the first place. Orin Kerr at Volokh Conspiracy does a nice run-down of these distinctions, but this whole case and the issues surrounding it are a tempest in a teapot.
Posted by: Prosecutor | Oct 8, 2009 1:51:33 PM
George. The DJ clause doe not stand for the proposition that a person cannot be punished twice for the same crime. It stands for the proposition that a person cannot be put in jeopardy twice. Jeopardy is risk. Once the conviction has become final the person is no longer in any danger of being put in jeopardy again for that crime; his risk has been reduced to fact.
To me it seems like you guys are really trying to dress up an ex post facto argument in DJ dress. There is an argument that if the prior was in 1970s before felon in possession laws were passed the person did not get the notice ex post facto requires.
Posted by: Daniel | Oct 8, 2009 2:08:54 PM
Prosecutor. And once again Kerr is wrong on just about every single point he mentions. His ignorance is just astounding. That's why intelligent people are here and no there.
Posted by: Daniel | Oct 8, 2009 2:16:00 PM
You can count me among the many who have grave doubts about our current approach to child pornography prosecutions and sentencing.
But the issue in this case was a narrow one: whether there was probable cause to issue a warrant. The site in question had only one purpose, and there was abundant evidence establishing that the offender had visited the site and paid to use it. Illegal images appeared on the front page of the site, which means that merely by visiting the site, the defendant had committed a crime, even if he had not paid a dime.
Whether our tax dollars ought to be spent prosecuting such a crime is a valid question, but it is not one the Court of Appeals is charged with answering. Their only charge was to determine if probable cause existed, and it clearly did.
Posted by: Marc Shepherd | Oct 8, 2009 2:18:20 PM
"Illegal images appeared on the front page of the site, which means that merely by visiting the site, the defendant had committed a crime, even if he had not paid a dime."
I disagree with that. I realize there are people who claim that to be true, Kerr being one of them. But I do not believe that either the history of the legislation nor an honest reading of precedent supports the view that merely seeing an illegal image amounts to "receiving" it.
Posted by: Daniel | Oct 8, 2009 2:27:40 PM
Daniel, accidentally typing in the [redacted]-lolita.com address might not be criminal, I agree. But the fact that obviously illegal images appear on the main page of the site indicate that, if one paid a subscription to join it, one intended to obtain and receive child pornography.
In this particular case, the man created a Paypal account which he used precisely once, to buy a membership to this website. This was not some accidental download. Nobody has claimed that there was probable cause to believe that he continued to be a subscriber. The majority merely finds that there was probable cause to believe, based on his intentional purchase of a subscription to a website dedicated to child pornography 12 to 18 months earlier, that there would be evidence of the commission of the crime of possession of child pornography on his computer. That's hardly a stretch, and it doesn't rely on anything unique to the nature of pedophiles to support it.
Posted by: PatHMV | Oct 8, 2009 2:52:05 PM
Daniel,
However the images on the homepage should be enough to satisfy the notice requirement for anyone who does in fact join the site. We are not talking about a case where images display on an unwanted and unrelated banner or pop-up and then linger in cache unknown to the recipient. The fact of subscription shows a desire to seek out what is being offered, especially when coupled with the extra steps of opening a paypal account, an account where the only transaction was the subscription.
The one issue I find interesting here is the staleness one. And even there the courts have accepted a hoarding theory of LEO experience. And cases like this one where images were in fact found despite that 16 month lag only serve to re-enforce that experience. I've seen numerous cases where LEO experience with a fact pattern have been used as context to find PC.
As long as LEO experience is allowed to form part of PC this case is well on the correct side of the line. I don't even see it being dusty let alone dirty. And I would believe the same to be true if it were simple copyright violation and not child porn.
Posted by: Soronel Haetir | Oct 8, 2009 2:54:42 PM
Prosecutor, how does the defendant's status as a former sex offender affect probable cause for the instant warrant?
Posted by: Mark #1 | Oct 8, 2009 2:56:00 PM
Soronel,
Except that the elements of grand larceny do not include (1) a prior conviction for petty larceny (2) a theft of $500. If the state were to provide such a definition of grand larceny then such a prosecution would be entirely proper. But no state to my knowledge uses such a definition.
California has a wobbler petty theft with a prior that is similar to this. It is a felony but can be dropped to a misdemeanor and the $ amount is fixed (say, if below $1000 in value, it is petty theft rather than grand theft). Bruce's objection there, and probably his strongest argument, is that the DA or judge should not have the discretion to determine if it should be a felony or not.
A different example, let's make up a crime called Dangerous Auto Theft. There are two ways to meet the elements for this crime:
(1) Steal a vehicle
(2) (a) Move the vehicle more than 100 miles from where the vehicle was taken from
or (b) Get caught going more than 25 mph over the speed limit in the vehicle.
This hypothetical works for what it does, but this is a continuous crime that does not have as an element a prior. For the prior to factor in, it would go something like this:
(1) Steal a vehicle
(2) (a) Move the vehicle more than 100 miles from where the vehicle was taken from
or (b) Get caught going more than 25 mph over the speed limit in the vehicle.
or (c) a previous auto theft where the vehicle was taken more than 100 miles or driven more than 25 mph above the speed limit.
It is now (c) that makes the prior an element of the current offense. What makes it intuitively unfair, even if lawful, is that on the previous plea there was no knowledge of a future (c) statute. So maybe Daniel is right. This is really an ex post facto argument. But there is also a double jeopardy hint in there because the facts of the past case are used to enhance the present case. And it is nearly indistinguishable which crime, the present or the prior, merits the current enhanced sentence. They are welded into one charge under (c).
You are both probably right. This argument won't go anywhere, but it sill feels intuitively wrong to use a prior as an element of a present crime.
Posted by: George | Oct 8, 2009 3:00:58 PM
I'm not Prosecutor, but I would say that probable cause existed, even without the defendant's prior record. However, I suspect that the defendant's record was what led the government to pursue such a stale case, where in others perhaps they wouldn't have.
Posted by: Marc Shepherd | Oct 8, 2009 3:01:14 PM
There's no requirement that probable cause be based solely on evidence which would be legally admissible at trial. For example, probable cause can arise from statements which would be considered hearsay at trial. Similarly, the defendant's status as a convicted pedophile would not be admissible to prove his guilt of this charge. But I'm not aware of any cases which say that an individual's prior actions can NOT be included as a factor in determining the existence of probable cause.
Personally, I think that probable cause existed here, regardless of the fact that defendant was a convicted sex offender. But I think that would be entirely permissible to use the defendant's past actions as a factor in evaluating the totality of the circumstances to determine the existence of probable cause.
Posted by: PatHMV | Oct 8, 2009 3:14:42 PM
George,
Except in your (c) case, even if at the time of the first offense the defendant did not have notice that his plea would be taken into account at a later trial for a second offense of the same nature, by the time that second offense has come around and the law amended notice is presumed.
The prior offense would have no bearing without a second auto theft.
I see this being different from even the case of a sex offender whose conviction occurred before notice upon travel requirement is passed who then travels after the requirement is made law. In that case notice of the law's requirements is again presumed. Such presumption may in fact be silly, but it has been the legal truth for a long time now that ignorance of the law is no excuse. Only where it is in fact impossible to know the law's requirement is such ignorance excused, which is a large factor in the rule of lenity.
Posted by: Soronel Haetir | Oct 8, 2009 3:16:50 PM
Soronell, thanks for the reply, but this is turning out to be a hot topic too, and so mayby we should refrain from off topic posting in this one because the post limit is near (25-27 it seems). Indeed, I wouldn't be offended if our host removes those off-topic posts to allow for more comments on this topic.
On the child porn topic, there are two important facts missing.
1) The government claims to have seen what images were on the home page of the site in December. What images were there on the day he subscribed? It would seem the government monitored the site daily and would know. And since it does not state what images were on the home page in January, is it possible they were different?
2) How quickly did he unsubcribe? Was it immediately before attempting to download anything? Since the government was presumably monitoring the site, the government should have this information.
So what persuades me in the dissent is the Ninth Circuit quote:
Gourde is different . . . from a person who actually mustered the money and nerve to become a member [of a child-pornography website] but, the next morning, suffered buyer’s remorse or a belated fear of prosecution and cancelled his subscription. Instead, Gourde became a member and never looked back—his membership ended because the FBI shut down the site.
In other words, too much information is lacking to know if deterrence worked with Frechette, though perhaps better late than never. The court should have remanded to get answers to these questions.
Posted by: George | Oct 8, 2009 4:17:15 PM
Daniel writes:
And once again Kerr is wrong on just about every single point he mentions. His ignorance is just astounding. That's why intelligent people are here and no there.I am eager to learn why I am wrong. Could you explain why? Perhaps my ignorance is so astounding that I will not understand it, but I would very much like to try.
Posted by: Orin Kerr | Oct 8, 2009 4:33:03 PM
Professor Kerr. I have already stated that I don't agree with your assessment that merely seeing or viewing child pornography is "receiving" it under the law. So that factor is immaterial. Second, I think LEO experience regarding hording is a deliberate red herring. In order for that LEO experience to be relevant there would need to be some probable cause that pictures were downloaded in the first place. One cannot horde what one doesn't have. Since there can be no showing of probable cause that pictures were downloaded, there can be no probable cause they were hoarded.
The only facts that indicate there is some possibility that he might have downloaded, received, or possessed child porn is his status as a registered sex offender and that fact that he took out a subscription to a site he visited. The fact that he took out a subscription does not establish probable cause. Probable cause means something more than a mere possibility. As both plutosdad and I have stated, there is nothing in ordinary business experience that indicates a person who takes out a subscription is more likely than not to use it. That leaves the only possible basis for probable cause the person's status as an SO. And there's another name for that type of probable cause: prejudice.
Posted by: Daniel | Oct 8, 2009 5:08:43 PM
Seriously, Daniel? It is equally or less-likely than not that people pay $80 for a web subscription that they never use at all? Remember, the issue is not whether there was probable cause to believe that he was continuing to subscribe a year later, but whether there was probable cause to believe that evidence of either a previous or an on-going violation of the law would be present.
Are you really saying that even if the staleness issue were removed, the mere purchasing of a subscription to a child-pornography site does not give probable cause to believe there will be evidence of possession of child pornography on the person's computer? At the very least, the purchase of the subscription is itself proof of the crime of attempted possession of child pornography.
And again, pattern and habit evidence are generally inadmissible as proof at trial, but the law has never forbidden, so far as I know, using such information in determining the existence of probable cause.
Posted by: PatHMV | Oct 8, 2009 5:31:05 PM
Are you really saying that even if the staleness issue were removed, the mere purchasing of a subscription to a child-pornography site does not give probable cause to believe there will be evidence of possession of child pornography on the person's computer? "
Yes, that IS what I am saying.
The majority opinion writes, "Evidence that an individual subscribed to child pornography web sites “supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” Wagers, 452 F.3d at 540 (citing Martin, 426 F.3d at 77; Froman, 355 F.3d at 890-91)."
The key word here is "supports". In none of those cases is a subscription to a child porn website ALONE sufficient. In Martin, for example, the person was also discovered by undercover cops hanging out in a child porn chat room and his IP traced.
Posted by: Daniel | Oct 8, 2009 5:41:14 PM
*********
Professor Kerr. I have already stated that I don't agree with your assessment that merely seeing or viewing child pornography is "receiving" it under the law. So that factor is immaterial.
********
But the cases say you are wrong. See, e.g.,State v.
Jensen, 173 P.3d 1046 (Ariz. App. 2008). If the cases say I am right and you are wrong, why is my ignorance "astounding"?
************
Second, I think LEO experience regarding hording is a deliberate red herring. In order for that LEO experience to be relevant there would need to be some probable cause that pictures were downloaded in the first place. One cannot horde what one doesn't have. Since there can be no showing of probable cause that pictures were downloaded, there can be no probable cause they were hoarded.
**************
The evidence of hoarding is only to address the staleness issue. If there was downloading, it was likely retained, as many courts have agreed. I don't suggest to the contrary.
***************
The only facts that indicate there is some possibility that he might have downloaded, received, or possessed child porn is his status as a registered sex offender and that fact that he took out a subscription to a site he visited.
**************
But this is wrong. The facts are:
1) He is a registered sex offender.
2) The site, slut-lolitas.com, was expressly dedicated to the distribution of child pornography: On its face, it had no other purpose.
3) The defendant went to some trouble to get this account: He created a PayPal account just for this.
4) The defendant paid $80 for the sole reason of being able to access the images of child pornography on the site.
**********
The fact that he took out a subscription does not establish probable cause. Probable cause means something more than a mere possibility.
**********
First, as I assume you know, on judicial review the standard is deferential: The good faith exception applies, so the only question is whether there is a substantial basis to conclude that there is probable cause. You may not know this, I realize, but it is the law: I hope I am not being wrong and ignorant in informing you of it.
********
As both plutosdad and I have stated, there is nothing in ordinary business experience that indicates a person who takes out a subscription is more likely than not to use it.
********
But that's obviously not the relevant legal question. I hope you agree that creating a PayPal account to purchase a subscription to a plainly illegal site is not part of "ordinary business experience." That's not how probable cause works: The question is the actual likelihood of something occurring, not whether it would have occurred if it were different. The question is how likely it is that someone would go through all the effort and time and money and legal risk of buying access to a blatantly illegal site only never to actually access it. Those chances are very low. Think of it this way: What are the chance that a person would pay $80 to buy access to an *adult* pornography site but then never actually access teh site? One would think the chances of that are pretty small.
Posted by: Orin Kerr | Oct 8, 2009 5:42:05 PM
There is nothing in the opinion to indicate he downloaded anything from the site. The government would know if he did and would argue that he did. Since the government did not argue that he downloaded anything, or tried to, we can assume he didn't.
That means the Ninth Circuit quote above should be controlling and everyone should be happy that deterrence worked in reference to this site. I suspect the government used unconstitutional spying and learned of his downloading some images from elsewhere, and then used his subscription as an excuse for a warrant.
Posted by: George | Oct 8, 2009 6:01:57 PM
To succinctly answer the question you pose: no, at least not in this case.
This is a no-brainer for probable cause. The guy opened a PayPal account he only used once and used it to purchase an $80 subscription to a site that provided nothing but child pornography. At that point nobody can reasonably say at that point that it is unlikely that he accessed the site, and his prior conviction only further undermines the contrary position. And while it is theoretically possible that he merely viewed the images without them being cached, it is far more probable in light of everyday experience that the images were cached. People getting bent out of shape because the agents didn't know for certain that he downloaded anything misapprehend the concept of probable cause. Similarly, e-pornography hoarding in general is a very common practice, and the Court rightly gives a great deal of weight to the experience of the affiant agent who said that the hoarding of child pornography is a common practice. That's enough for probable cause, and on top of that even if you suspect that the defendant deleted the cached images, there is still a reasonable probability that removed images would be recoverable and thus that evidence was still there.
I am glad that law enforcement is by and large left in the hands of people with a bit of common sense, and not the jurisdiction of those who believe that a registered sex offender who buys a subscription to a child pornography website is unlikely to have evidence of child pornography on his computer. I believe the fact that this position's leading proponent here spends much of his "argument" flinging misspelled ad hominems accurately reflects the merits of that position.
Posted by: Prosecutorial Indiscretion | Oct 8, 2009 7:56:06 PM
test
Posted by: Joe Hodnicki | Oct 11, 2009 1:30:27 PM
