Ninth Circuit Affirms Denial of Motion to Suppress Child Porn Evidence on iPod – U.S. v. Needham

June 18, 2013 by David S. Seltzer

In Dougherty v. City of Covina, the Ninth U.S. Circuit Court of Appeals agreed with a suburban Los Angeles man that an accusation of molestation alone was not sufficient evidence to legalize a search of his home for child pornography. The same logic was present in the Ninth Circuit’s new decision in U.S. v. Needham, although the court ultimately permitted prosecutors to use the evidence they found. In this case, Nicholas Needham of Orange County triggered the police’s interest when he was accused of child molestation. Officers asked for a search warrant for Needham’s home, asserting that individuals with a sexual interest in children often have child pornography. Needham moved to suppress it, arguing this was insufficient for probable cause. The district court denied his motion, and a divided Ninth Circuit affirmed that ruling.

In June of 2010, a five-year-old boy told his mother that a man had touched the boy’s penis in the men’s room at a mall. The boy pointed out Needham, who left; police tracked him down through credit card records. Needham was a registered sex offender who had been charged with continuous sexual abuse of a child under 14, and for possession of obscene matter, when he was 16. The detective then asked for a search warrant, saying that based on her training and experience, and Needham’s past and current accusations, she believed he was likely to possess child pornography. No facts were included about whether Needham even owned a computer, much less used it for illegal purposes. In the ensuing search, however, police found child porn on Needham’s iPod, leading to indictment for possession of child pornography. His suppression motion argued that the warrant was not supported by probable cause and that no good-faith exception applied. The district court disagreed.

The Ninth Circuit upheld that ruling, but with much internal disagreement. The district court applied a good faith exception to the requirement that warrants be supported by probable cause. Suppression may still be appropriate if the police did not rely on it in good faith—if the warrant was so lacking in indications of probable cause that it was unreasonable to rely on it. Noting that this analysis in criminal cases is the same as the analysis for qualified immunity in civil cases, the Ninth concluded that its decision in Dougherty controlled the outcome. There, the court granted qualified immunity to officers with a similar warrant that conjectured about what an accused molester might have had, even though they agreed that the warrant had no probable cause. Later cases made it clear that the warrant’s logic does not support a probable cause finding, but the panel found itself bound. A concurrence by Judge Berzon would have suppressed if not for Dougherty, and another by Judge Tallman would have found probable cause if not for Dougherty.

The concurrence by Judge Berzon said a three-judge panel may not overturn precedent, which makes me suspect this case is headed for an en banc rehearing. In fact, an en banc rehearing would also help the Ninth Circuit bring Dougherty in line with the cases since then that have rejected the “child molesters all possess child pornography” line of reasoning. In my experience as a cyber crime defense lawyer, in fact, these two crimes do not necessarily lead to one another. Possession is a passive act and does not involve direct contact with children. People charged with simple possession of child pornography often argue, in fact, that they should be shown mercy because they have never hurt a child. I look forward to an en banc opinion from the Ninth, which could bring it into line with several sister circuits.

If you’re accused of a serious cyber crime, don’t wait to call Seltzer Law, P.A. Led by former cyber crime prosecutor David Seltzer, we represent clients across the United States facing criminal charges involving the Internet or technology. You can call us today for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Similar blog posts:

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

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

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