Wednesday, August 17, 2005

A Grim Day for the Fourth Amendment: False "Candyman" Affidavit Nonetheless Sufficient to Support Search Warrant

United States v. Joseph Martin, Docket No. 04-1600-cr (L) (2d Cir. August 4, 2005) (Op. by Walker): Chills ran down this reader's spine while reading the majority opinion. If the Government can ransack one's house and papers based on such barebones evidence -- essentially, joining a listserve / e-group discussing illegal activity -- what will it not be allowed to do? Judge Pooler's spirited and thorough rebuttal of the majority's faulty analysis warms the heart somewhat; perhaps it will spur the rest of the Circuit to order en banc rehearing. Her claim that "today the majority announces a dangerous precedent" is right on the mark. At least for now, those on the NAMBLA or NORML listserve should make sure to cancel their membership a.s.a.p.!

This case arises from the infamous "Operation Candyman" investigation, in which a Government agent lied -- OK, made a false statement that clearly appears to be intentional -- about a crucial fact in his affidavit supporting the issuance of numerous search warrants throughout the country. Apparently, while some courts (including at least one S.D.N.Y. judge) have suppressed evidence resulting from these warrants, finding that the probable cause standard could not be satisifed without the false statement, the majority of courts have concluded to the contrary -- that probable cause existed even if the falsehood were excised. The Circuit agrees with the latter courts in Martin.

The essential facts are thus. Martin joined an "e-group" called "girls12-16", an off-shoot of the original Candyman e-group. (The opinion defines an "e-group" as an "internet forum through which persons with similar interests can interact by e-mail and online "chat," and by posting messages, pictures, and videos to the group's website." It thus sounds like any ol' "listserve" to this luddite). This group included the following "welcome message." It is quoted here at some length to illustrate the majority's distorted reading of it, upon which it relied heavily in upholding the search of Martin's home:

"Hi all, This group is for all those [w]ho appreciate the young female in [t]he[ir] finest form. Watching her develop and grow is like poetry in motion, to an age where she takes an interest in the joys and pleasures of sex. There is probably nothing more stimulating than watching a young teen girl discover the pleasures of the orgasm. The joys of feeling like she is actually coming into womanhood. . . . This is the place to be if you love 11 to 16 yr olds. You can share experiences with others, share your views and opinions quite freely without censorship (apparently not - ed.) You can share all kinds of other information as well regarding - your current model . . . [,] [w]here the best place to meet girls is . . . The choice is all yours. . . . Post videos and photographs . . . Membership is open to anyone, but you will need to post something. M[a]ybe a little bit about yourself / what your interests are (specifically), your age, location . . . and a pic or vid would be good to[o]."

Op. at 6. Joining this e-group allowed a member to access the following features of the site: a "Chats" section allowing real-time conversations with other members; a "Files" section allowing members to post images and videos, posted by others, that can be viewed or downloaded; a "Polls" section allowing members to answer survey questions; a "Links" section permitting members to post links to other sites; and a "E-mail list," allowing a member -- if he so chooses -- to receive emails sent by other members.

The agent's lie concerns this last feature. In his affidavit, "Special" Agent Binney swore that anyone who joined this e-group automatically received all emails sent by other members. He further swore that after joining this group, he received about 193 e-mails, 14 of which contained attachments of child pornography.

As later revealed, however, the statement about automatic receipt of emails was false. (For evidence that this was an intentional falsehood, see pages 8-9 of the opinion). Indeed, there is no evidence that Martin received any emails from the group.

In any event, based on these facts and the fact that Martin was listed as a member of this e-group, a search warrant was issued for his home & computer. Child pornography was found and he was indicted for possession of child pornography. The district court denied his motion to suppress and sentenced him to 27 months' imprisonment.

The Circuit affirmed, finding that probable cause existed even without the false statement. Primarily, it relied upon the highly questionable claim that "the girls12-16's welcome message unabashadly announced that its essential purpose was to trade child pornography." Op. at 14. As the majority stated, "[t]he affidavit included evidence that an occupant of Martin's house . . . was a member of the girls12-16 e-group, whose raison d'etre, or primary reason for existence, was the trading and collection of child pornography -- a wholly illegal endeavor." Op. at 16 (emphasis added). And as it further adds, "The concern that a person who innocently joins an organization with a mixed purpose might be subjected to an unnecessary and unconstitutional search is not present here because the girls12-16 e-group and its technological feature served primarily as a means for effecting illegal activity. At its core, the modus operandi of the girls12-16 website was criminal, and that is determinative in this case." Op. at 20 (emphasis in original).

This is a grossly strained reading of the group's "welcome message." Though surely a listserve filled with weirdos and pervs, nothing in that distasteful message indicates that the group's "raison d'etre" or "essential purpose" was "the trading and collecting of child pornography" (which is of course the sole illegal activity alleged). Rather, the group seems simply to be a forum for those sexually interested in teenage girls to electronically "meet" others with a similar proclivity, and to chat, fantasize, or just B-S about their perversions. And although some illegal activity surely took place within the site, there is no evidence whatsoever that "the modus operandi" or "core" of this group was "criminal". Indeed, the Agent stated that while he received 193 emails, only about 7% contained illegal content. Thus, the majority of the emails sent by members of the group did not involve any illegal activity. Moreover, no evidence was presented that messages or links posted on the site primarily concerned the trading of kiddie porn.

The majority's blithe assurance notwithstanding, this decision indeed causes grave concern that "a person who innocently joins an organization with a mixed purpose [will] be subject to an unnecessary and unconstituational search" of their hearth and home. The girls12-16 group is clear one with a "mixed purpose". While some may join it to facilitate the illegal acquisition of child porn, others may join it simply to chat or fantasize or role-play. Indeed, at least with respect to the emails sent by members, 93% of the activity on the site was entirely lawful. And what about the parent who joins the group because she wishes to learn about the behavior of those who may prey on her children?

Finally, what distinguishes this listserve joined by Martin from one sponsored by NAMBLA or by NORML? Or the U.S. Marxist-Leninist Organization? Not much, it seems.

As already noted, Judge Pooler's dissent punctures the majority's reasoning at every point. It deserves reading and notice.


Anonymous Anonymous said...

So the chickenhawks at NAMBLA won't be able to trade secrets re: the art of child molestation. Where goeth our civil liberties?

Also, online child porn (which, by definition one views on his computer), is much different from marijuana - at least until there's such a thing as a virtual smoke. So your comparing NAMBLA to NORML is, well, disanalogous.

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