NINE MILE FALLS, Wash.—Todd and Nicole Chism were spending a quiet evening at home in January, 2007, when Washington State troopers executed a search warrant on the couple's home and offices, looking for evidence that Todd was the webmaster of two child porn sites. Although there was no physical evidence of child porn discovered on the couple's computers, the police nonetheless arrested the firefighter for "[s]ending, bringing into the state depictions of minor engaged in sexually explicit conduct and [p]ossession of depictions of [m]inor engaged in sexually explicit conduct" over the internet.
It took four months for the police to decide that indeed there had been no child porn on the couple's computers, and a year later the Chisms filed suit for official misconduct.
"The most important comment that I think I can start out with is there has been no evidence whatsoever of a download by the Chisms of child pornography," State Patrol Captain Jeff Devere told TV station KXLY.
That fact was brought home last week when a ruling by the Ninth Circuit Court of Appeals has stripped the arresting officer and her supervisor of the qualified immunity granted to them by the U.S. District Court in Spokane, allowing the Chisms' lawsuit against the officers, the State Patrol and the State of Washington to proceed to trial.
According to the opinion by Judge Richard Paez, Washington's Missing and Exploited Children Task Force (MECTF) had received a pair of tips from the National Center for Missing and Exploited Children in July, 2007, noting that web hosting company Yahoo! had archived a pair of sites containing images of child porn, both of which listed the sites as having been opened by "Mr. Nicole Chism," who, for the first site, listed his residence as Chile, and for the second, Bolivia. The Yahoo! records also listed the billing address for the credit card used to open the accounts, which turned out to be the Chisms' home address, and included their phone number and their credit card number to which Yahoo! had charged hosting fees for the accounts, which could have been as little as $7.45 per month.
However, the police also discovered that the first users who logged into the accounts did so from two different IP addresses, one of which the police traced to a resident of Walla Walla, Washington, but were unable to trace the other one. After a few months, one of the officers noticed that the untraced IP address and the name "Mr. Nicole Chism" were common to both Yahoo! accounts, and Detective Rachel Gardner took that information, along with the credit card number to which the hosting fees had been charged, to the Bank of America, which had issued the credit card.
There, Gardner found that the Chisms had reported that credit card lost in 2006, and the bank had been issued a replacement card, but told Gardner that no fraudulent activity had been reported on the account. Gardner decided that that information was enough to provide the basis for search warrants for the Chisms, and the arrest warrant for Todd.
There's just one problem: Gardner made several false statements in obtaining the warrants, including the claims that Todd Chism had downloaded child porn images to his residence or office computer, and that the Chisms' credit card was "used to purchase the images of child pornography from the website." Unfortunately for Gardner, a search of all of the couples' computers failed to turn up any child porn at all, much less child porn purchased from the websites the cops were investigating—and Gardner knew that no charges beyond the web-hosting fees had been charged to the Chisms' credit card. Gardner also failed to disclose that at least one IP address had led to a person unrelated to the Chisms; that the other IP address had been untraceable; that although Nicole was an authorized user of the credit card in question, it was in Todd's name; and that the identifying information associated with both kiddie porn websites was "nonsensical."
Worse, the Washington State Patrol's training materials regarding child porn investigations specifically state, "Much, if not all, of the cyber-evidence (the E-mail addresses and IP addresses used) will lead you to an innocent person. That’s why simply identifying which account was used to commit a crime does not provide you with probable cause to get a search or arrest warrant for the name and address on that account. You’ll need to do more investigating to determine if there is a link between the account holder (or other members of the household) with the criminal activity that was committed with that account." Gardner failed to do any of that, and her supervisor, John Sager, allowed her to proceed anyway.
The majority of the Ninth Circuit panel found, therefore, that the officers had engaged in "intentional or reckless deception" in obtaining the warrants, and had also made materially false statements and omissions in the process.
"Words cannot describe how much I have suffered and my family has suffered and unfortunately will continue to," Chism remarked upon hearing of the Ninth Circuit's ruling. "I am innocent."
Sadly, the police aren't taking the ruling lying down.
"Both the Attorney General's Office and the Washington State Patrol take the potential exploitation of children through child pornography very seriously," spokeswoman Janelle Guthrie told the Seattle Post-Intelligencer website. "We both care deeply about this case, we're disappointed in this ruling and we'll be requesting an en banc review of this decision."