from the not-that-difficult-to-be-specific dept
As has been noted here before, it’s often the worst people that generate the best case law. People staring down the barrel of several years in prison are extremely motivated to find any reason to have the evidence against them dismissed. People not faced with the same reality rarely find a reason to trouble the courts with their complaints.
It’s also been noted here that “for the children” is a powerful motivator. It’s an argument that allows governments to expand their power and sidestep constitutional rights because — as it’s argued — doing otherwise means siding with those sexually exploiting children.
In this case, brought to us by FourthAmendment.com, both of these elements are present. The (allegedly) worst people challenged the way the government obtained evidence to use against them. And the government apparently felt that simply informing the court that this was a CSAM investigation would be all it needed to satisfy its probable cause requirements.
The Sixth Circuit Appeals Court has taken a look at this and decided [PDF] this is only going to hurt the government employees who couldn’t be bothered to do their jobs correctly. The published opinion says it takes more than what’s seen here to support a search of someone’s electronics.
It’s a short opinion, running only 18 pages. But it says what needs to be said: copy-pasting boilerplate isn’t an acceptable substitution for actual probable cause.
The case began with an overseas tip to the DHS, informing Homeland Security agents a US-based IP address was being used to view CSAM (child sexual abuse material). This IP address led DHS agents and Kentucky State Police officers to the home of Edward Lewis.
Lewis invited the officers and agents into his home. Shortly after, he was informed the government had reason to suspect “there was child sexual exploitation activity at the house.” Lewis signed a form consenting to a search of his home and a couple of his devices.
A forensic examiner generated a “preview” of Lewis’s laptop, revealing file names presumed to be indicative of CSAM. Thumbnail images obtained during the preview appeared to confirm this — images that were created by Lewis recording his cousin’s children while they bathed. At no point were any of the files opened or examined further.
Following a call to a local prosecutor, Detective Gatson of the Kentucky State Police decided to obtain a search warrant.
Detective Gatson prepared a search warrant for Lewis’s house and any electronic devices stored inside the home that could contain evidence of child pornography, including the laptop and cell phone that Detective Gatson and Rollins had reviewed at Lewis’s home. Detective Gatson did not share the proposed search warrant or his affidavit in support of the warrant with a prosecutor, but instead took the documents directly to a Franklin County judge. Detective Gatson did not provide the state judge with any additional information beyond what he included in the proposed search warrant and his affidavit. The state judge signed the search warrant.
So far, so good. A warrant was obtained, a judge signed it, the warrant was executed, and evidence was obtained.
Actually, it’s not so good. The warrant was filled with words suggesting probable cause, but the words were ultimately meaningless since they had little to do with the specifics of this investigation.
The lower court agreed there wasn’t much in terms of actual probable cause, but granted good faith to the government because… well, a judge had signed it. So, even if the judge was wrong to do so, the cops were right to rely on it.
Not so fast, says the Sixth Circuit.
The government does not dispute that Detective Gatson’s affidavit failed to establish probable cause. “Detective Gatson provided the state judge only one fact in support of the existence of probable cause: that a search of Mr. Lewis’s laptop and cell phone had occurred.” Absent additional information, such as a description of the evidence uncovered during that search, Detective Gatson’s affidavit merely stated his belief that Lewis had viewed child pornography. That conclusory statement was too vague and insubstantial to establish probable cause to search Lewis’s electronic devices. The search warrant that was issued based on Detective Gatson’s affidavit therefore violated the Fourth Amendment’s probable-cause requirement.
Whether it was haste or laziness on Detective Gatson’s part that led to him deciding it wasn’t worth describing what had been observed during the cursory search of Lewis’s laptop, the end result is the same: no probable cause was established. That Gatson decided the warrant application should be 99% boilerplate and 1% probable cause is on Gatson. And that means the warrant is invalid.
But wait! If a judge signed it, surely the execution of the warrant was in good faith? Wrong again, says the Sixth Circuit.
Considering the complete lack of factual information included in Detective Gatson’s affidavit, we hold that no reasonable officer would rely on the affidavit to establish probable cause to believe that Lewis’s electronic devices would contain evidence of a child sexual-exploitation offense or any other crime.
In addition to buying donuts for the KSP every morning for the foreseeable, one would hope this detective has been instructed to attend a few AFFIDAVIT 101 classes. I mean, this is everything wrong with this warrant, as the Appeals Court points out:
As discussed above, the non-boilerplate portion of Detective Gatson’s affidavit begins by stating that “[a]n HSI investigation identified Edward L Lewis . . . as a person of interest.” The affidavit does not explain what “HSI” stands for, why HSI considered Lewis to be a person of interest, or the significance of HSI’s person-ofinterest designation. Reading that initial portion of Detective Gatson’s affidavit, a judge would have no factual basis upon which to conclude that Lewis may have committed any crime, let alone the specific crime of child sexual exploitation as defined by Kentucky law.
Next, the affidavit states that Lewis “consent[ed] to [a] search [of] his laptop and cell phone” and that “[d]uring [the] search it became apparent that Mr. Lewis had used his laptop to view images of child sexual exploitation.” This section clearly expresses Detective Gatson’s belief that Lewis had committed a crime, but it does not provide a factual basis upon which a magistrate could independently reach that conclusion. Indeed, Detective Gatson’s conclusion that “it became apparent that” Lewis had “view[ed] images of child sexual exploitation” was “a
mere conclusory statement that [gave] the magistrate virtually no basis at all for making a judgment regarding probable cause.” Illinois v. Gates, 462 U.S. 213, 239 (1983). A magistrate
could conclude that there was probable cause to search Lewis’s electronic devices only by substituting Detective Gatson’s evaluation of the evidence for the magistrate’s own evaluation.
Lastly, the affidavit states that “[b]ased on [Detective Gatson’s] knowledge, experience and training, Edward L Lewis has demonstrated a pattern of criminal activity related to child pornography, and there is a reasonable likelihood that the user treats child pornography as a
valuable commodity to be retained and collected, a characteristic common to many people interested in child pornography.” This final statement likewise fails to set forth any factual information. It is tantamount to a statement that “probable cause existed”—the very definition of a conclusory statement.
Gatson should have done better with the warrant application. And, because he didn’t, no one should have felt it was reliable, even with a judge’s signature.
By omitting the essential facts of his investigation and communicating only his bottomline conclusion, Detective Gatson asked the magistrate to find probable cause based solely on his
say-so. “No reasonable officer could have believed” under those circumstances “that the
affidavit was not so lacking in indicia of probable cause as to be reliable.”
And that leads up back to the signature this warrant application obtained. If no “reasonable officer” could rely on it, how could the judge possibly have felt this application — one completely devoid of probable cause — was something worth their signature? We’ll never know because judges are completely immune from legal action arising from their approval of obviously deficient warrants.
But, setting aside this inexplicable judicial approval of this warrant, the problem detailed here starts with the investigator. “Training and experience” is a completely empty phrase when you don’t apply that knowledge when seeking search warrants.
Neither the laws nor the facts are complex. A law-enforcement officer with as much training and experience as Detective Gatson—and indeed any reasonable law-enforcement officer—should know that a warrant affidavit must provide enough non-conclusory information to allow a neutral magistrate to determine whether there is probable cause.
That’s why the warrant fails and that’s why the good faith exception doesn’t apply, despite the initial judicial approval of Gatson’s deficient warrant.
Rejecting the application of the good-faith exception is necessary to demonstrate that Detective Gatson and the other officers had a duty to ensure that the affidavit was free of obvious constitutional defects and to underscore the costs of not discharging that duty.
The warrant is dead. The evidence obtained with it? Gone. The conviction predicated on this evidence? Vacated. And that all could have been prevented if Detective Gatson had taken just a bit more time to actually write a warrant application, rather than just fill it with copy-pasted boilerplate. For someone presumably serious about prosecuting crimes against children, Detective Gatson did nothing but put the victims of this alleged crime that much further away from seeing justice done.
Filed Under: 4th amendment, 6th circuit, csam, edward lewis, evidence, kentucky state police, probable cause, warrant