The United States Constitution states that one of our most cherished rights in this country is to be free from searches of our homes without a search warrant based upon particularized facts that establish a nexus between the place to be searched and the evidence sought. That means before the police can search our homes, they must demonstrate sufficient evidence that there is actually evidence of a crime in the home. Today the Sixth Circuit Court of Appeals ruled that people suspected of child porn have less rights to be secure in their home from police search warrants.
In the case of U.S. v. Elbe FBI agents investigated the defendant for possession and distribution of child pornography. The investigation consisted of mostly associating Elbe with a particular online username and IP address which was used at different hotels in a couple different states. After about seven months of investigations the federal agents identified where Elbe lived and obtained a warrant to search his house. The FBI did not have any specific information that the Elbe did anything wrong at his home. They did drive by and see him using a laptop from his porch. In support of the warrant federal agents use boiler plate language of characteristics that states that people involved in child pornography often keep large collections of child porn that they maintain in their homes for years. Noticeably absent was any particular evidence that established a nexus that child porn was actually in his home. They searched the home and found over 130,000 images and videos of child porn. He was conceited of possession and distribution of child porn and was sentenced to 15 years in prison.
In support of the warrant the FBI agents used boiler plate language that people associated with child porn often keep large collections at their homes for long periods of time. From their investigation of the defendant being associated with the online username that was being used to share child porn in other states, they characterized the defendant as a person who would have child porn in his home which was the support of the search warrant. The Six Circuit Court ruled that boilerplate language is ok if there are also facts that suggest that the target of the search fits the characteristics of a prototypical child porn collector In this case the court pointed out the affidavit in support of the search warrant included that the defendant’s user name was associated with sharing child porn online, and federal agents witnessed the defendant using a laptop from his porch at his home. The court cited previous case law that supported the contention that evidence that a person has visited child porn sites likely have downloaded, saved and kept the porn.
The court ruled that in the context of child pornography when a defendant has been identified with a username that has been involved with child porn, it automatically establishes probable cause to search their home. The court also ruled that because people involved with child porn often keep their collections over long periods of time, for many years, an affidavit for a warrant with facts that were older did not make the affidavit stale as the defendant had argued. This case establishes that persons suspected of child porn have less constitutional rights in their homes as others. As a criminal defense attorney, I cannot support nor do it agree with watering down anyone’s constitutional rights, no matter what the crime.
