Molestation Accusation Alone Cannot Support Search of Defendants Computer – Dougherty et al. v. City of Covina

August 24, 2011 by David S. Seltzer

Search warrants are a major part of my work as a Miami child pornography possession criminal defense attorney. Of course, my clients cannot be convicted without evidence that they actually (and knowingly) possessed child pornography, so evidence that they did possess the material must be legally obtained — and that means any search warrant in the case must be legal. That was the problem in Dougherty et al. v. City of Covina et al., a case from the Ninth Circuit finding a southern California police department had no probable cause for a search of Bruce Dougherty’s home computer. Dougherty, a sixth-grade teacher, was accused of touching a student inappropriately. On the strength of that accusation, and the officers’ past experience, the police department initiated a search of Dougherty’s home computer and other electronics.

Dougherty was accused in 2006 of touching a student’s breasts and looking at her buttocks, and further investigation turned up more allegations of inappropriate touching. The investigating officer wrote out an affidavit for a search warrant, swearing that his experience in juvenile sex crimes investigation meant he “[knew] subjects involved in this type of criminal behavior have in their possession child pornography.” The warrant permitted police to search Dougherty’s home and seize his computer, cameras and electronic media. The search took place soon after the warrant was signed on Oct. 11, 2006. Doughterty permitted the search even though the officers said they forgot to bring the warrant. The seized computers and other items were not returned until December 27, 2007. No charges were ever filed against Dougherty. He sued the City of Covina, the lead officer, Robert Bobkiewicz, and police chief Kim Raney. The trial judge dismissed the claim with prejudice, finding the police had probable cause for a warrant and Bobkiewicz had qualified immunity as an officer.

Dougherty appealed, and the Ninth Circuit vindicated him — to some extent. The Ninth found that no probable cause existed for the search warrant leading to the search of his home. Bobkiewicz’s affidavit relied only on his training and experience; it did not contain any facts connecting him with child pornography, either directly or through his status as a suspected child molester. Nor were there any such facts, the court noted; Bobkiewicz apparently did not even verify that Dougherty owned a personal computer. The Ninth further noted a split in the circuits on probable cause for a child pornography search when the defendant is accused only of molestation. The Ninth ultimately sided with the Second and Sixth Circuits, finding no probable cause, and against the Eighth. However, it went on to find that Bobkiewicz was entitled to qualified immunity because the law was unclear until this ruling, so Dougherty’s case against him remained dismissed. The Ninth also ended Dougherty’s claim against the City of Covina, saying he had never stated his claim adequately. Judge Brewster concurred in the immunity ruling but preferred the Eighth Circuit’s position on probable cause.

As a south Florida child pornography defense lawyer, I am pleased with this ruling. I agree with the Second Circuit that molesting a child is a separate crime from possessing child pornography (unless the molestation is part of producing child pornography), and thus, it is insufficient evidence to support a search warrant. Remember, all Americans have a Fourth Amendment right against unlawful search and seizure, and that means the bar for a search is justifiably high. It is unlikely that courts would support a warrant to search for child pornography based on a different separate crime, such as a firearms violation, and the Ninth Circuit’s decision says molestation should be treated the same way. However, as a Fort Lauderdale cyber crime criminal defense lawyer, I know the split in the circuits means this issue will probably wind up in the Supreme Court.

Seltzer Law, P.A., defends people around the nation who are accused of online crimes like hacking, wire fraud and child pornography possession. For a free, confidential case evaluation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi

Florida Supreme Court Allows Search Evidence Despite Error on Warrant – Moreno-Gonzalez v. State

Eighth Circuit Rules Search That Led to Child Porn Conviction Was Valid – U.S. v. Schwarte