By Burt Rose
Click to download Opinion09-56395
Was a search warrant supported by probable cause where it was chiefly based upon a theory that an individual who molests children probably possesses child pornography? The 8th and 5th Circuits have agreed with the prosecution on this issue. United States v. Colbert, 605 F .3d 573, 578(8th Cir.2010); United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir.1994). But in the civil case of Bruce DOUGHERTY and Jonathan Dougherty, Appellants, v. CITY OF COVINA; Robert Bobkiewicz and Kim Raney, Appellees, the United States Court of Appeals for the Ninth Circuit, No. 09–56395, 2011 WL 3583404 (Aug. 16, 2011), ruled 2 to 1 against the police.
The police argued that it was a common sense leap that an adult male, who teaches sixth graders, and who engaged in inappropriate conduct with his students, would likely possess child pornography. However, the affidavit for the warrant contained no facts tying the acts of the appellant as a possible child molester to his possession of child pornography. The affidavit provided no evidence of receipt of child pornography. No expert specifically concluded that Dougherty was a pedophile. In the affidavit, Officer Bobkiewicz stated only that “based upon his training and experience … subjects in this type of criminal behavior have in their possession child pornography….” The affidavit provided no indication that Dougherty was interested in viewing images of naked children or of children performing sex acts. There was no evidence of conversations with students about sex acts, discussions with children about pictures or video, or other possible indications of interest in child pornography. Officer Bobkiewicz apparently did not search Dougherty’s work computer or email account for indications of pedophilia or child pornography. Indeed, the affidavit did not even verify that Dougherty owned a computer or had internet service or another means of receiving child pornography at his home.
Therefore, the warrant in this case was not supported by probable cause.